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THE    LAW 


ov 


CARRIERS  OF  PASSENGERS. 


ILLT7STBATED    BT 


LEADING  CASES  AND  NOTES. 


SEYMOUE   D.    THOMPSO:^', 

Author  of  -'Law  of  Negligence,'"  '•Homesteads  and  Exemptions," 
"Liability  of  Stockholders,"  etc. 


ST.    LOUIS: 
F.  H.  THOMAS    AND   COMPANY. 


Entered  according  to  Act  of  Congress,  in  the  year  1880,  by 

SEYMOUR  D.  THOMPSON, 
In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


St.  Louis:    Press  of  6.  T.  Jones  and  Company. 


I 


TO    THE 

HONORABLE    SAMUEL    TEEAT,    LL.D., 

United  States  District  Judge: 

For  thirty  consecutive  years  you  have  occupied  a  seat  upon  the 
judicial  bench,  where  you  have  administered  justice  without  osten- 
tation, with  impartiality,  learning,  and  diligence.  This  long  and 
honorable  pubhc  career  has  deserved  and  secured  for  you  the  admi- 
ration of  the  legal  profession  and  the  respect  and  gratitude  of  your 
fellow-citizens.  It  is  not  a  trivial  custom  which  enables  me  to  close  a 
somewhat  laborious  task  by  offering  a  tribute  to  your  worth  as  a  jurist, 
a  citizen,  and  a  fiiend,  and  by  expressing  the  wish  that  the  strength  of 
body  and  mind,  which  has  enabled  you  to  bear  up  successfully  for  so 
many  years  under  the  very  great  labors  and  trials  of  yom-  oflSce,  may 
be  spared  to  you  for  many  years  to  come. 


(hi) 


PREFACE. 


This  book  embodies  an  effort  to  look  somewhat  closely  into  a  subject 
which,  since  the  introduction  of  steam  as  a  means  of  transit,  has  ac- 
quired considerable  importance  in  the  law.  An  attempt  has  been  made 
to  collect  and  cite  all  cases  bearing  on  the  subject,  except  a  few  which 
pertain  exclusively  to  State  regulation  of  fares,  a  subject  which  belongs 
to  carriers  of  goods  and  warehousemen  as  well  as  to  carriers  of  passen- 
gers. The  plan  of  this  work  is  the  same  as  that  of  the  author's  woik 
on  "Negligence,"  and  the  table  of  cases  embraces  a  concordance  of 
citations  constructed  on  the  same  plan.  The  notes  are  designed  to 
contain  a  complete  treatise  on  the  law  of  carriers  of  passengers,  and 
the  select  cases  printed  at  the  head  of  each  chapter  are  used  merely  as 
a  text  introducing  the  notes.  The  book  is  thus  designed  to  give  the 
practitioner  the  advantage  of  a  number  of  leading  cases,  combined  with 
a  treatise,  upon  a  considerable  title  of  the  law.  In  constructing  the 
notes,  fine  writing  has  not  been  aimed  at,  but  a  constant  effort  has  been 
made  to  attain  substantial  accuracy.  If  the  practitioner  shall  find  in 
this  volume  any  aid  to  his  labors,  it  is  desired  that  he  should  accord  a 
large  share  of  the  credit  to  Mr.  Edwin  G.  Merriam,  to  whose  analytical 
skill  and  painstaking  industry  its  completion  in  its  present  form  is 
largely  due.  It  is  also  a  pleasure  to  state  that  Mr.  Frank  W.  Peebles 
and  Mr.  William  L.  Murfree,  Jr.,  who  assisted  the  author  in  his  previous 
work,  have  rendered  valuable  assistance  upon  this. 


(V) 


TABLE    OF    CONTENTS. 


CHAPTER  I. 

Page 
Of  the  Obligations  to  Receive  and  Carry 1-30 


CHAPTER   H. 
Whek  the  Relation  of  Carrier  and  Passenger  subsists        31-52 

CHAPTER   HI. 

Of  the  Obligation  op  the   Carrier   to   carry  according 

TO  Advertisement  or  Contract 53-71 

CHAPTER   IV. 

Op  the  Obligation  op  the  Carrier  to  furnish   safe  and 

convenient  Stations  and  Approaches 72-110 

CHAPTER   V. 
Liability  of  the  Carrier  for  Negligence 111-242 

CHAPTER   VI. 

CONTRIBUTOEY  NEGLIGENCE   OF   THE    PASSENGER 243-272 

CHAPTER   VII. 

Application  of  the   Doctrine  of  Imputed   Negligence  in 

THE  Carriage  of  Passengers 273-294 

CHAPTER   VIII. 

Police  Duties  of  the  Carrier 295-305 

(vii) 


VUl  TABLE    OF    CONTKNTS. 


CHAPTER   IX. 

Page 

Regulations  of  the  Carrier 306-351 


CHAPTER   X. 

Liability  of  the  Carrier  for  Assaults   upon   Passengers 

BY  HIS  Servants 352-377 

CHAPTER   XL 

Contracts    lighting    Carrier's    Liability    for    Personal 

Injuries 378-402 

CHAPTER   XH. 

Use  of  Another's   Means   of   Transportation — Liability 

OF  Carrier  to  Passenger  for  Conseqi  ential  Injuries     403-418 

CHAPTER   Xni. 

Liability  of  Carrier  for  Damac^e  to  Pa^^senger  through 

Default  op  Connecting  Lines 419-437 

CHAPTER   XIV. 
Street-Railroad  Coivipanies 438-447 

CHAPTER   XV. 
Carriers  of  Passengers  by  Water    ........     448-487 

CHAPTER   XVI. 

I.iability  of  Carrier  in  respect  of  Passenger's   Baggage    488-539 

CHAPTER   XVH. 
Remedies,  Procedure,  and  Damages 540-585 


TABLE   OF  CASES  PRINTED   IN  FULL. 


Page 

Bass  V.  Chicago  and  North-Western  Railway  Company  .     .     .     .  311 

Benett  v.  Peninsular  and  Oriental  Steamboat  Company  ....  448 

Bennett  v.  Dutlon 2 

Bennett  v.  New  Jersey  Railroad  and  Transportation  Company     .  28 1 

Burns  v.  Belief ontaine  Railway  Company ;     .  441 

Candee  v.  Pennsylvania  Railroad  Company 419 

Chamberlain  v.  Chandler 459 

Chicago,  Burlington,  and  Quincy  Railroad  Company  v.  Parks     .  319 

Christie  v.  Griggs ..181 

Cornman  v.  Eastern  Counties  Railway  Company 76 

Crafter  v.  Metropolitan  Railway  Company 88 

Curtis  V.  Rochester  and  Syracuse  Railroad  Company     ....  188 

Day  V.  Owen 306 

Denton  v.  Great  Northern  Railway  Company 53 

Dunn  V.  Grand  Trunk  Railway 328 

Great  "Western  Railway  Company  v.  Blake 403 

Great  Western  Railway  Company  v.  Pocock 63 

Hawcroft  v.  Great  Northern  Railway  Company 59 

Hegeman  v.  Western  Railroad  Corporation 160 

Hollister  v.  Nowlen 489 

Ingalls  V.  Bills 11-2 

Jencks  v.   Coleman II 

Jones  V.  Boyce 246 

Longmore  v.  Great  Western  Railway  Company 81 

McCall  V.  Forsyth 541 

McDonald  v.  Chicago  and  North- Western  Railroad  Company  .     .  93 

McElroy  v.  Nashua  and  Lowell  Railroad  Corporation     ....  409 

Morrissey  v.  Wiggins  Ferry  Company 243 

New  York  Central  and  Hudson  River  Railroad  Company  o.  Fraloff  502 


TABLE    OF    CASES    PRINTED    IN    FULL. 


Page 

Nicholson  v.  Lancashire  and  Yorkshire  Railway  Company  ...  85 

Nolton  V.  Western  Railroad  Corporation 37 

O'Brien  v.  Boston  and  Worcester  Railroad  Company     ....  22 

Pearson  v.  Duane 17 

Pendleton  v.  Kinsley 352 

Philadelphia  and  Reading  Railroad  Company  v.  Derby   ....  31 
Pittsburgh,  Fort  Wayne,  and  Chicago  Railway  Company  v.  Brig- 
ham      101 

Pittsburgh,  Fort  Wayne,  and  Chicago  Railway  Company  v.  Hinds  295 

Quimby  v.  Vanderbilt 423 

Railroad  Company  v.  Aspell 252 

Railroad  Company  v.  Jones 248 

Railroad  Company  v.  Lockwood 378 

Readhead  v.  Midland  Railway  Company 124 

Steamboat  New  World  v.  King 175 

Stokes  V.  Saltonstall 183 

Thorogood  v.  Bryan 273 

Thurston  v.  Union  Pacific  Railroad  Company -10 

Toomey  v.  London,  Brighton,  and  South  Coast  Railway  Company  72 

Vinton  v.  Middlesex  Railroad  Company (. 

Wilton  V.  Middlesex  Railroad  Company 4;5-> 


TABLE    OF    CASES    CITED. 


i^"  In  this  table  of  cases  the  letters  c,  d,  o,  and  the  interrogation  point  (?)  indicate  as 
follows :  — 

c  —  That  the  foregoing  case  is  cited  in  judicial  opinions  at  the  pages  of  the  reports 

following. 
d  — That  its  authority  is  there  distinguished. 
?  —  That  its  authority  is  there  questioned, 
o  — That  its  authority  is  there  denied,  or  the  case  overrnled. 
The  cases  printed  in  italic  are  published  in  full  in  this  volume. 


A. 

Abbott  V.  Bradstreet,  55  Me.  530.    pp. 

305,  518. 

c  118  Mass.  277;  17  Am.  L.  Reg.  (N.  S.)  510; 
72  N.  Y.  56 ;  6  Reporter,  .55. 
Aberfoyle  (The),  Abb.  Adm.  242 ;  s.  c.  1 

Blatchf.360.    pp.  362,  467. 

c  6  Ben.  371 ;  1  Blatchf.  583. 
Achteuhageu  v.   Watertown,    18  Wis. 

331.     p.  552. 

c33  Wis.  72;  22  Wis.  248;  42  Wis.  600;  41 
Wis.  109;  19  Wis.  497;  39  Wis.  137.  ?  34  Wis. 
362,  363. 

Ackerson  v.  Erie  R.  Co.,  32  N.  J.  L. 

254.     p.  575. 

c  67  Me.  251. 
Adams  v.  Carlisle,  21  Pick.  146.    p.  551. 

c  110  Mass.  50;  1  Bradw.  422;  4  Gray,  180, 
335,  401;  19  Conn.  576;  10  Mete.  3&i;  18  N.  Y. 
252;  15  Gray,  580;  1  Allen,  190;  8  Gray,  132; 
13  Mete.  299;  2  Woodb.  &  M.  345;  27  Vt.  465; 
20  N.  Y.  72 ;  26  Me.  240 ;  32  Me.  53 ;  3  La.  An. 
646;  35  N.  H.  276;  12  Metc.  418;  7  Gray,  97; 
11  Metc.  463;  40  N.  11.  416;  5  Gray,  73. 
Adams  v.  Lancashire  etc  R.  Co.,  L.  R. 

4  C.  P.  739.     pp.  229,  263.  • 

C  44  L.  J.  (Q.  B.)  114 ;  L.  R.  10  Q.  B.  275 ;  L. 
R.  3  Adm.  479.    ?  L.  R.  8  Q.  B.  165,  166, 167, 
168, 169, 173, 176;  42  L.  J.  (Q.  B.)  107. 
Adams  Express  Co.  v.  Haynes,  42  111. 

89.     p.  386. 
Adams  Express  Co.  v.  Perkins,  42  111. 

458.     p.  38G. 


Adderley  v.  Cookson,  2  Camp.  15.    p. 

468. 
Adwin  V.  New  York  etc.   R.   Co.,  CO 

Barb.  590.     p.  339. 
Alden  v.  New  York  etc.  R.  Co.,  26  N. 

Y.  102;  s.  c.  3  Am.  L.  Reg.  (x.  s.) 

498.     pp.  158,  199,  357. 

c  47  Barb.  252 ;  3  CliflF.  422 ;  47  N.  Y.  287 ;  53 
N.  Y.  139.     d  44  N.  Y.  480,  481,  4S2,  483,  is:, 
488.     ?  L.  R.  4  Q.  B.  392.     o  64  Pa.  St.  229. 
Aldworth  v.  Stewart,  14  L.  T.  (n.  s.) 

862  ;  s.  c.  4  Post.  &  Fin.  957.  p.  365. 
Alger  V.  Lowell,  3  Allen,  402.  p.  271. 
Allen  V.  London  etc.  R.  Co.,  L.  R.  6  Q. 

B.  65.     p.  372. 
Allen  V.  Mackay,  1   Spragiie,  219.     p. 

487. 
Allen  V.  Willard,  57  Pa.  St.  374.     p.  552. 

e  85  Pa.  St.  2.54;  29  Iowa,  48;  51  Ala.  570;  48 
How.  Pr.  48;  61  N.  Y.  184;  79  Pa.  St.  302;  40 
Iowa,  345 ;  86  Pa.  St.  159. 
Allender    v.  Chicago    etc.  R.  Co.,  37 

Iowa,  264;  s.  c.  43  Iowa,  276.    pp. 

43,  235,  270,  548,  562. 
Allerton  Packing  Co.  v.  Egan,  86  111. 

253;  s.  c.  18  Alb.  L.  J.  295.     p.  222. 
Ailing  V.  Boston  etc.   R.   Co.,   7  Re- 
porter, 622.     p.  511. 
Allyn  V.  Boston  etc.  R.  Co.,  105  Mass. 

77.     p.  551. 

c  21  Minn.  297 ;  67  Me.  104 ;  41  Iowa,  231 ;  12 
Bush,  47;  105  Mass.  207;  116  Mass.  .541;  1 
Bradw.  422. 

Cxi) 


TABLE    OF    CASES    CITED. 


Alton  V.  Midland  R.  Co.,  19  C.  B.   (n. 

s.)  213;  s.  c.  11  Jur.  (x.  s.)  672;  34 

L.  J.   (C.   P.)    292;    13  Week.  Rep. 

918.     p.  546. 

c  44  L.  T.  (N.  S.)  152;  L.  R.  10  C.  P.  194. 
American  Contract  Corp.  v.  Cross,  8 

Bush,  472.     pp.  510,  512. 
American  Steamship  Co.  v.  Bryan,  83 

Pa.  St.  446.     pp.  472,  517,  518,  519. 
Ames  V.  Union  R.  Co.,  117  Mass.  541. 

pp.  544,  546. 
Anderson  v.  North-Eastern  R.  Co.,  4 

L.  T.  (K.  s.)  216.     p.  536. 
Anderson  v.  Ross,  2   Sawyer,  91.    p. 

463. 
Anderson  v.   Toledo  etc.   R.   Co.,   32 

Iowa,,  86.     p.  537. 
Anonymous,  1  Dyer,  33  a,  pi.  10.    p.  56. 
Ansell  V.  Waterhouse,  2  Chitty,  1 ;  s.  c. 

6  Mau.  &  Sel.  385;  18  Eng.  Ch.  227. 

pp.    121,    132,  133,    493,    542,    644, 

545. 

c4  Watts  &  S.  180;  15  Mich.  131;  19  C.  B. 
(N.  S.)  23S;  S  Best  &  S.  381,  383;  L.  R.  2  Q.  B. 
421,  423;  30  L.  J.  (Q.  B.)  186;  8  N.  Y.  458;  19 
Wend.  281;  10  Upper  Canada  Q.  B.  463;  9 
Mete.  13 ;  19  Wend.  239. 
Armstrong  v.  Lancashire  etc.  R.  Co., 

33  L.  T.   (N.  S.)  228;  s.  c.  L.  R.  10 

Exch.  47;   44   L.  J.   (Exch.)  89;  23 

Week.  Rep.  295.     p.  287. 
Armstrong  v.  New  York  etc.  R.  Co., 

66  Barb.  437.     pp.  234,  269. 
Arnold  v.  Illinois  etc.  R.  Co.,  83  111.  273. 

pp.  29,  402. 

c  2  Bradw.  109. 
Ashby  V.  White,  1  Smith's  Ld.  Cas.  450. 

p.  285. 
Ashmore  v.  Pennsylvania  etc.  Transp. 

Co.,  28  N.  J.  L.  180.     p.  386. 
Aston  V.  Heaven,  2  Esp.  533.    pp.  114, 

118,  130,  134,  155,  185,  199,  236,  237, 

238,  355,  405,  452. 

C2DUV.558;  3  Cliff.  419;  21Md.296;  8  Best 
&  S.  379,  384;  L.  R.  4  Q.  B.  388,  419,  424;  36 
L.  J.  (Q.  B.)  185,  187;  48  N.  H.  212;  13  Pet. 
191;  4  Iowa,  550;  19  111.  517;  1  Duer,  241;  1 
McCord,  447;  13  Vt.  326,  327;  11  Gratt.  711;  13 
Conn.  326;  9  Mete.  7;  23  N.  H.  284. 
Atchison  v.  King,  9  Kan.  550.  p.  220. 
Atchison  etc.  R.  Co.  v.  Brewer,  20  Kan. 

669.    p.  514. 


Atlantic  etc.  R.  Co.  v.  Dunn,  19  Ohio 

St.  1G2.     pp.  369,  575. 

c  38  Ind.  127;  11  Nev.  364;  3  So.  Car.  598. 
Atwood    V.   Reliance    Transp.   Co.,   9 

Watts,  87.     pp.  525,  526. 
Augusta  etc.  R.  Co.  v.  Renz,  55   Ga. 

126.     pp.  261,  444. 
Aurora  v.  Pulfer,  56  lU.  270.     p.  220. 

c  64  111.  23;  81  111.303. 
Aurora  Branch  R.  Co.  v.  Grimes,  13  111. 

585.     p.  552. 
Austin  V.  Great  Western  R.  Co.,  L.  R. 

2  Q.  B.  442  ;  8  Best  &  S.  327 ;  36  L.  J. 

(Q.  B.)  201;  15  Week.  Rep.  863;  16 

L.  T.  (N.  S.)  320.     p.  44. 

c  34  Upper  Canada  Q.  B.  459. 
Austin  V.  Manchester  etc.  R.  Co.,  10 

C. B.  454.     p.  528. 
Austin  V.  New  Jersey  Steamboat  Co., 

43  N.  Y.  75.     p.  220. 
Aveson  v.  Kennaird,  6  East,  188.    p. 

557. 
Avey  V.  Atchison  etc.  R.  Co.,  11  Kan. 

448.     p.  549. 
Aycrigg's  Executors  v.  New  York  etc. 

R.  Co.,  30  N.  J.  L.  462.     p.  363. 
Ayles  V.  South-Eastem  R.  Co.,  37  L.  J. 

(Exch.)  104;  s.  c.  L.  R.  3  Exch.  146. 

p.  416. 

B. 

Bacon  v.  Charlton,  7  Cush.  581.     p.  557. 
Baker  v.  Brinson,  9  Rich.  L.  201.     p. 

393. 
Baker  v.  Portland,  58  Me.  199.     p.  330. 
Baldwin  v.  Collins,  9  Rob.  (La.)  468. 

pp.  529,  530. 
Baldwin  v.  Greenwoods  Turnpike  Co., 

40  Conn.  238.     p.  220. 

e  43  Conn.  155;  13  Hun,  86. 
Ballou  V.  Fai'uham,  11  Allen,  73.    p.  551. 
Baltimore  v.  Marriott,  9  Md.  160.     p. 

552. 
Baltimore  etc.  R.  Co.  v.  Blocher,  27 
'    Md.  277.     pp.  317,  336,  362,  369,  375, 

565,  576. 

c  3  Cliff.  428 ;  36  Wis.  464 ;  106  Mass.  189;  11 
Nev.  364;  9  Hun,  673;  57  Me.  217,  226,  261;  36 
Wis.  675. 

Baltimore  etc.   R.  Co.  v.  Boteler,  38 
Md.  586.     p.  271. 
c  11  W.  Va.  35. 


TABLE    OF    CASES    CITED. 


xm 


Baltimore  etc.  R.  Co.  v.  Brady,  32  Md. 

333.     p.  386. 
Baltimore  etc.  R.  Co.  v.  Gallahue,  12 

Gratt.  655.     p.  543. 
Baltimore  etc.  R.  Co.  v.  Smith,  23  Md. 

402.     p.  513. 
Baltimore  etc.  R.  Co.  v.  The  State,  30 

Md.  47.     Tj.  2'.i3. 

C  43  Md.  551 ;  3!)  Md.  452. 

Baltimore  etc.  R.  Co.  v.  Wilkinson,  30 

Md.  224.     pp.  261,  445,  547,  562. 
Baltimore  etc.  R.  Co.  v.  Wightman's 

Administrator,   29   Gratt.   431.     pp. 

200,  211,  543,  549. 
Baltimore  Steam-Packet  Co.  v.  Smith, 

23  Md.  402.     pp.  436,  537,  539. 
Bancroft  v.  Boston  etc.  R.  Co.,  97  Mass. 

270.     pp.  233,  269. 
Bank  of  Orange  v.  Brown,  3  Wend.  158. 

pp.  542,  543,  544,  545. 

c4  Watts  &  S.  180;  58  N.  Y.  134;  12  111.  412; 
37  N.  Y.  242;  1  E.  D.  Smith,  97;  24  N.  Y.  281. 
Bankier  v.  Wilson,   5  Lower  Canada 

Rep.  203.     p.  515. 
Barber  v.  Essex,  27  Vt.  62.     p.  553. 
Barden  v.  Boston  etc.  R.  Co.,  121  Mass. 

426 ;  s.  c.  16  Am.  L.  Reg.  (N.  s.)  664. 

p.  263. 
Barker  v.  Coflin,  31  Barb.  556.    pp.  65, 

70,  71,  376. 
Barker  v.  Midland  R.  Co.,  18  C.  B.  46; 

8.  c,  25  L.  J.  (C.  P.)  184.     pp.  350, 

351. 

c  59  Pa.  St.  141. 
Barker  v.  New  York  etc.  R.  Co.,  24  N. 

Y.  599.     pp.  67,  376,  561, 
Barnes  v.  Ward,  2  Car  &  Kir.  661 ;  SsC. 

9  C.  B.  392 ;  14  Jur.  334 ;  19  L.  J.  (C. 

P.)  105.     p.  79. 

c  38  Ua.  585;  68  N.  Y.  290,  292;  3  Best  &  S. 
254;  4  C.  B.  (N.  S.)  561;  4  Hurl.  &  N.  70,  74;  5 
Jur.  (N.  S.)  150;  28  L.  J.  (Exch.)  140;  L.  R.  1 
C.  P.  .54,  .'55;  11  Jur.  (N.  S.)  980;  7  C.  B.  (N.  s.) 
742,  744,  745 ;  6  Jur.  (N.  S.)  898, 89!) ;  29  L.  J.  (C. 
P.)  206,  207;  9  Allen,  563;  15  Abb.  Pr.  (N.  S.) 
323;  35  N.  H.  278;  2  C.  P.  Div.  371 ;  43  Vt.  1,30; 
15  C.  B.  (N.  8.)  240;  33  L.  J.  (C.  P.)  5;  29  Wis. 
26 ;  10  Allen,  375 ;  33  N.  J.  L.  2M  ■  50  Biub.  363 ; 
12  C.  B.  (N.  S.)  6;  5  Duor,  499;  ■>  15ost&S.  779; 
31  L.  J.  (Q.  B.)  218;  5  Kepoi-ter,  :i45 ;  86  Pa.  St. 
SO;  34  N.  J.  L.  471,  472;  4  Best  &  S.  157;  32  L. 
J.  (Q.  B.)  240. 


Barney  v.  Oyster  Bay  etc.  Co.,  67  N.  Y. 

301 ;  s.  c.  3  Abb.  N.  C.  525.     pp.  351, 

377. 
Barney  v.  Prentiss,  4  Har.  &  J.  317.    p. 

501. 
Barney  i;.  The  D.  R.  Martin,  11  Blatchf. 

233;   s.  c.  6  Ch.  Leg.  N.  535.     pp. 

351,  377. 
Barr  v.  Midland  R.  Co.,  Irish  Rep.  1  C. 

L.  130.     p.  337. 
Barreda  v.  Silsbee,  21   How.  167.    p. 

509. 
Barron  v.  Illinois  etc.  R.  Co.,  1  Biss. 

412.     pp.  415,  550. 
Bartholomew  v.  St.  Louis  etc.  R.  Co., 

53  111.  227.     pp.  534,  535,  556. 
Barton  v.  St.  Louis  etc.  R.  Co.,  52  Mo. 

253.     pp.  259,  563. 
Bass  V.  Chicago  etc.  E.  Co.,  36  Wis. 

450;  s.  c.  39  Wis.  636;  42  Wis.  654; 

2  N.  W.  Rep.  84.    pp.  67,  224,  335, 

345,  346,  376,  576.     (In  full,  p.  311.) 

c  43  Wis.  667,  673;  36  Wis.  670,  671,  673,  675. 
d  36  Wis.  675. 

Batson  v.  Donovan,  4  Barn.  &  Aid.  21. 

p.  497. 
Bayley  v.  Manchester  etc.  R.  Co.,  L.  R. 

7  C.  P.  415 ;  s.  c.  L.  R.  8  C.  P.  (Exch.) 

148;  41  L.  J.   (C.  P.)  278;  28  L.  T. 

(N.  s.)  366;  42  L.J.  (C.  P.)  78.     pp. 

369,  374. 

c  36  Wis.  675. 
Bayliss  v.  Lintott,  28  L.  T.  (x.  s.)  666; 

s.  c.  42  L.  J.  (C.  P.)  119;  L.  R.  8  C. 

P.  345.     pp.  521,  538,  545. 
Beal  V.  South  Devon  R.  Co.,  3  Hurl.  & 

Colt.  337.     pp.  398,  574. 
Beall  V.  King,  12  East,  452.     p.  542. 
Bean  v.  Green,   12  Me.  422.     pp.  524, 

527. 

c  12  Wall.  86;  46  N.  H.  229;  54  Pa.  St.  25 1 ; 
1  Woods,  577. 
Beard  v.  Connecticut  etc.  R.  Co.,  48  Vt. 

401.    p.  108. 
Beardsley  v.  Swan,  4  McLean,  333.     p. 

553. 
Beatty  v.  Gilmore,  16  Pa.  St.  483.     p. 

552. 
Bechcr  v.  Great  Eastern  R.  Co.,  22  L.  T. 

(N.  s.)  299;  s.c.  18  Week.  Rep.  627; 


XIV 


TABLE    or    CASES    CITED. 


L.  R.  5  Q.  B.  241;  39  L.  J.   (Q.  B.) 

122.     pp.  512,  522. 
Beck  V.  East  River  Ferry  Co.,  6  Robt. 

87.     p.  294. 
Beckmauw.  Shouse,5Rawle,  79.    p.  511. 
Beebe  v.  Ayres,  28  Barb.  275.    pp.  70, 

377. 

c  31  N.  J.  L.  393;  6  Reporter,  490;  47  Iowa, 
86;  10  Ch.  Leg.  N.  78;  5  Daly,  51;  13  Huu,  362; 
7  Hun,  673;  46  N.  H.  221,  222. 

Beers  v.  Housatouic  R.  Co.,  19  Conn. 

566.     pp.  217,  552,  563. 

c  13  111.  588 ;  45  Md.  492 ;  3  Daly,  385 ;  10  Iowa, 
271 ;  24  N.  J.  L.  831 ;  19  Conn.  511 ;  26  Conn.  597 ; 
17  Mich.  122 ;  29  Conn.  209 ;  36  Md.  377 ;  1  Iowa, 
110;  19  How.  Pr.  224;  24  N.  J.  L.  271,  277;  101 
Mass.  465;  21  Iowa,  106;  8  Minn.  161 ;  45  Ala. 
441 ;  23  Conn.  443,444;  35N..II.  277;  29  Md.  440; 

24  Vt.  496;  31  Miss.  193,  197,  198;  15  Ind.  489; 
23  Conn.  347;  18  Cal.  356;  37  Mo.  294;  61  Mo. 
591 ;  9  Wis.  217 ;  5  Kan.  182 ;  40  Miss.  386 ;  52  Mo. 
258;  33  Iowa,  568;  29  Md.  294;  37  Mo.  550;  9 
Rich.  L.  92;  17  III.  413;  34  N.  Y.  14.  ?  30  Pa. 
St.  464. 

Beisiegel  v.  New  York  etc.  R.  Co.,  14 
Abb.  Pr.  (N.  s.)  29.  p.  553. 
c  33  Ind.  362 ;  34  Iowa,  158,  161 ;  22  Minn. 
172 ;  63  lU.  179 ;  3  Keyes,  479 ;  1  Abb.  App.  Dec. 
438;  70  N.  Y.  125;  34  Iowa,  279;  32  Wis.  275;  49 
Cal.  257 ;  45  N.  Y.  664 ;  39  Huw.  Pr.  414,  515 ;  7 
Lans.  14;  42  N.  Y.  473 ;  3  Lans.  85  ;  44  Ind.  82; 

25  Mich.  291:  G4  N  Y.  532;  6  Huu,  319;  63  N. 
Y.  525,  5.30;  2  Hun,  538;  5  N.  Y.  S.  C.  (T.  &  C.) 
125 ;  38  N.  Y.  449 ;  36  X.  J.  L.  536,  537 ;  2  N.  Y. 
S.  C.  (T.  &C.)  646;  45  N.  Y.  850;  6  Jones  & 
Sp.  135;  .50  Iiid.  45;  58  N.  Y.  458,  459;  40  Barb. 
208;  39  N.  Y.  302,  363;  7  Hun,  554;  72  N.  Y.  30, 
69 ;  6  Daly,  496 ;  71  N.  Y.  231 ;  59  N.  Y.  472 ;  36 
N.  Y.  43. 

Belfast  etc.  R.  Co.  v.   Keys,   9  H.  L. 

Cas.  556;    s.  c.  8  Jar.    (n.  s.)    367; 

9  Week.  Rep.  793 ;  4  L.  T.   (n.  s.) 

841.     pp.  511,  522. 

c  L.  R.  6  Q.  B.  621;  40  I.,  J.  (Q.  B.)  304;  73 
111.  355;  L.  R.  2  Q.  B.  444;  8  Best  &  S.  332;  6 
Hun,  547,  549;  L.  R.  1  Q.  B.  534. 
Bell  V.  Drew,  4  E.  D.  Smith,  59.     pp. 

511,  512,  539. 
B^'llefontaine  etc.  R.  Co.  v.  Hunter,  33 

Ind.  335.     p.  558. 

c  22  Minn.  172 ;  21  Minn.  297 ;  64  Mo.  490 ;  41 
Iowa,  231 ;  9  Kan.  631 ;  25  Mich.  291 ;  50  Ind.  45, 
68,  82;  1  Wils.  (Indianapolis)  82,  489;  47  Iowa, 
551. 
Bellefontaine  etc.  R.  Co.  v.  Snycler,  24 

Ohio  St.  670.     pp.  284,  293. 


Beman  v.  Rufford,  1  Sim.  550;  s.  c.  15 

Jur.  914;  20  L.  J.  (Ch.)  537;  6  Eng. 

Law  &  Eq.  106.     p.  418. 
Benett  v.  Peninsular  etc.  Steamboat  Co., 

6  Dow.  &  L.  387:  s.  c.  6  C.  B.  774; 

13  Jur.  347;  18  L.  J.  (C.  P.)  85.  pp. 

26,  55,  127,  155,  463,  464.     (In  full, 

p.  448.) 

c  15  Upper  Canada  C.  P."440.    ?  L.  R.  4 
Q.  B.  388. 
Bennett  v.  Button,  10  N.  H.  481.     pp. 

19,  26,  28,  65,  411.     (In  full,  p.  2.) 

c  15  Mich.  131,  132;  4  Wall.  615. 
Bennett  v.  Holmes,  32   Ind.   108.      p. 

558. 
Bennett  v.  Neio  Jersey  etc.  B.  Co.,  36 

N.  J.  L.  225.     p.  289.     (In  full,  p. 

281.) 

c  43  Wis.  527:  6  Cent.  L.  J.  430;  120  Mass. 
492. 
Bennett  v.  New  York  etc.  R.  Co.,  69 

N.  Y.  594 ;  s.  c.  5  Hun,  599 ;  4  Abb. 

N.  C.  523.     pp.  339,  376. 

o  37  Mich.  346. 
Bennett  v.  Railroad  Co.,  7   Phila.  11. 

pp.  69,  336,  549. 
Benson  v.  New  Jersey  etc.  Transp.  Co., 

9  Bosw.  412.     p.  570. 
Bentham  v.  Hoyle,  3  Q.  B.  Div.  289. 

p.  337. 

c  3  C.  P.  Div.  436. 
Bergheim  v.  Great  Eastern  R.  Co.,  3 

C.  P.  Div.  221 ;  s.  c.  17  Am.  L.  Reg. 

(N.  s.)  799;   6   Cent.  L.  J.  222;   18 

Alb.  L.  J.  32.     p.  516. 

e  19  Alb.  L.  J.  114. 
Bernhardt    v.   Rensselaer    R.   Co.,  32 

Barb.  165;  s.  c.  18  How.  Pr.  427; 
*23  How.  Pr.  166;  1  Abb.  App.  Dec. 

131.     p.  562. 

c  33  Iowa,  568;  3  Daly,  385;  49  Barb.  534: 
32  How.  Pr.  267;  35  N.  Y.  39;  46  Barb.  269;  58 
N.  Y.  455;  33  Barb.  509;  24  N.  Y.  445;  60  N.  Y. 
:i31. 
Berringer  v.  Great  Eastern   R.  Co.,  4 

C.  P.  Div.  163.     p.  435. 
Berry    v.    Cooper,    28    Ga.    543.      p. 

389. 
Bigelow  V.  Reed,  51  Me.  325.     p.  220. 

c  58  Me.  206;  65  Me.  462,  550;  12  West.  Jur. 
478;  9  Wis.  26;  6  Daly,  215;  08  Me.  558;  13 
Hun,  85;  55  N.  Y.  119. 


TABLE    OF    CASES    CITED. 


XV 


Bigelow  V.  Rutland,  4  Cush.  247.     p. 

551. 

c  42  Me.  335;  22  Wis.  679,  680;  35  Me.  104; 
35  N.  H.  276;  3  Allen,  179;  42  N.  H.  216;  17 
How.  167. 
Bigge  V.  Parkinson,  7  Hurl.  &  N.  955; 

s.  c.  31  L.  J.  (Exch.)  601.     p.  153. 
Biles  V.  Holmes,  11   Ired.  L.  16.    p. 

562. 
Bingham  v.  Rogers,  6  Watts  &  S.  495. 

pp.  525,  526,  538. 
Bird  V.  Great  Northern  R.  Co.,  28  L.  J. 

(Exch.)  3.     pp.  137,  206,  207,  212, 

c  8  Best  &  S.  389;  36  L.  J.  (Q.  B.)  189. 
Birkett  v.  Whitehaven  etc.  R.  Co.,  4 

Hurl.  &  N.  730 ;  28  L.  J.  (Exch.)  348. 

pp.  206,  412,  417. 
Birmingham  v.  Dorer,  3  Brewst.  69. 

p.  293. 
Bissell  V.  Michigan  etc.  R.  Co.,  22  N.  Y. 

258.     p.  433. 

c  36  Barb.  425,  428;  12  Wall.  85;  24  N.  Y. 
271,  279. 
Bissell  V.  New  York  etc.   R.   Co.,  23 

N.  Y.  61 ;  s.  c.  25  N.  Y.  442  ;  26  N.  Y. 

630;  29  Barb. 602.     pp.  385,  388, 400, 

401,  402. 

c  17  How.  366,  370;  51  Pa.  St.  327;  43  N.  Y. 
267;  2  Abb.  Pr.  224;  31  N.  J.  L.  393;  51  N.  Y. 
63,  64;  42  N.  Y.  214;  37  lU.  507;  20  Minn.  130; 
.39  Iowa,  254;  51  Barb.  78.  d  66  N.  Y.  317.  o 
47  Ind.  485;  51  Pa.  St.  328;  19  Ohio  St.  14;  17 
Wis.  376. 
BLxby  V.  Montpelier  etc.  R.  Co.,  49  Vt. 

123.     pp.  27,  560,  561. 
Black  V.  CarroUton  R.  Co.,  10  La.  An. 

33.     pp.  564,  572. 

c  49  N.  H.  375. 
Blair  v.  Erie  R.  Co.,  66  N.  Y.  313;  s.  c. 

3  Abb.  N.  C.  525.     pp.  45,  520. 
Blair  v.  Milwaukee  etc.  R.  Co.,  20  Wis. 

254.     p.  222. 

c  16  Kan.  576,  577 ;  23  Wis.  193. 
Blake  v.  Midland  R.  Co.,  18  Q.  B.  93; 

s.  c.   16  Jur.  562;   21  L.  J.   (Q.  B.) 

233;    10  Eng.   Law   &  Eq.   439.     p. 

571. 

clO  La.  An.  42;  30  Barb.  110;  23  Pa.  St. 
529;  33  Pa.  St.  328;  48  N.  H.  545;  8  Am.  L. 
Ueg.  36 ;  26  111.  403 ;  3  Hurl.  &  X.  214 ;  32  Barb. 
29,  31 ;  .34  N.  J.  L.  157 ;  24  Md.  105 ;  30  N.  J.  L. 
200;  1  Handy,  489,  490;  26  111.  403;  L.  R.  3 
Adin.  480;  Irish  Kep.  6  C.  L.  254;  6  Nev.  231. 


Block  V.  Bannernian,  10  La.  An.  1.     pp. 

361,  364. 

c  3  Cliflf.  427 ;  27  La.  An.  5. 
Block  V.  Steamboat  Trent,  18  La.  An. 

664.     p.  524. 

c  20  La.  An.  403;  27  La.  An.  92. 
Blossman  v.  Dodd,  43  N.  Y.  264.     p. 

527. 

c  10  Jones  &  Sp.  363,  364;  48  N.  Y.  216;  57 
N.  Y.  5 ;  64  Barb.  391 ;  54  N.  Y.  515 ;  14  Blatchf. 
14 ;  42  N.  Y.  S.  C.  (T.  &  C.)  363. 

Blossman  v.  Hooper,  16  La.  An.  160 

pp.  521,  536. 
Blum  V.  Southern  Pullman  Palace-Car 

Co.,  3  Cent.  L.  J.  591.  pp.  531,  532 
Blumantle  v.  Fitchbuig  R.  Co.,  20  Alb. 

L.  J.  304.     pp.  511,  523. 
Boice  V.  Hudson  etc.  R.  Co.,  61  Barb. 

611.     pp.  65,  70,  71,  376. 
Boland  v.  Missouri  R.  Co.,  36  Mo.  484. 

p.  245. 
Bolch  V.  Smith,  7  Hurl.  &  N.  736 ;  s.  c 

8  Jur.  (N.  s.)  197;  31  L.  J.  (Exch.) 

201;  10  Week.  Rep.  387;  6  L.  T.  (n. 

s.)  158.     pp.  82,  83. 

c21  Minn.  210;  46  Md.  218,  222;  41  N.  Y. 
532,  534;  33  L.  J.  (G.  P.)  3;  10  Allen,  375;  67 
N.  Y.  370;  2  0.  P.  Div.  310;  5  Cent.  L.  J.  28L 
Bomar  v.  Maxwell,  9  Humph.  621.    pp. 

511,  512,  521. 

c  15  Mich.  127;  30  N.  Y.  612;  41  Miss.  678; 
10  How.  Pr.  333 ;  11  Humph.  420. 
Bonsteel  v.  Vanderbilt,  21   Barb.   26. 

pp.  466,  567. 
Bordeaux  v.  Erie  R.  Co.,  8  Hun,  579. 

pp.  341,  342,  376. 
Boston  etc.  R.  Co.  v.  Proctor,  1  Allen, 

267.     pp.  71,  367. 

c  67  Me.  165 ;  17  Alb.  L.  J.  367 ;  6  Cent.  L. 
J.  382 ;  31  N.  J.  L.  393 ;  50  Ind.  144 ;  2  Cent.  L. 
J.  830;  54  N.  Y.  516;  46  N.  H.  219;  14  AUen. 
436. 
Bostwick  V.  Champion,  11  Wend,  581, 

pp.  410,  412,  418,  436, 

c  20  Pa.  St.  503;  19  Wend.  254;  26  Ala.  738, 
737 ;  49  N.  Y.  26,  29. 

Boswell  V.  Hudson  etc.  R.  Co.,  10  Abb. 

Pr.  442.     p.  401, 
Boswell  V.  Hudson   River  R,   Co.,   5 

Bosvv.  699.     p.  402, 
Bosworth  V.  Swansey,  10  Mete,   363, 

p.  551. 

c  22  N.  H.  564;  117  Mass.  65;  3  Allen,  408; 


XVI 


TABLE    OF    CASES    CITED. 


43  Me.  93 ;  47  N.  Y.  33 ;  10  Allen,  21 ;  120  Mass. 
492;  .■?-  Barb.  299;  36  K.  Y.  58;  39  Me.  197, 198; 
119  Mass.  278;  7  Gray,  459.    o  29  Wis.  24. 
Boucher  v.  Lawson,  Hardw.  194.    p. 

452. 
Boulston  V.  Sandiford,  Skin.  279.    p. 

493. 
Boutiller  v.  Milwaukee,   8  Minn.   97. 

p.  544.     ' 
Bowen  v.  New  York  etc.  R.  Co.,  18  N. 

Y.  408.     pp.  201.  211. 

c  24  N.  Y.  445;  71  N.  Y.  494;  68  N.  Y.  310;  5 
Hun,  526;  32  Barb.  659;  34  N.  Y.  11,  408,  412; 
63  Barb.  266. 
Boyce  v.  Anderson,  2  Pet.  150.    pp.  52, 

114,  122,  186,  199,  356,  411. 

c  15  Mich.  140;  4  Iowa,  549;  13  Pet.  192;  26 
lU.  387;  13  Vt.  326;  7  Hill,  545,  550;  14  N.  Y. 
573;  9  Mete.  13;  11  Gratt.  710;  49  Me.  281;  13 
Conn.  326.    ?  3  Cliff.  421 ;  13  Cal.  603. 
Boyce    v.    Baylifte,   1    Camp.   58.    p. 

470. 
Boyce  v.  California  Stage  Co.,  25  Cal. 

460.     pp.  554,  585. 

c  2  Mont.  524,  525 ;  44  Cal.  84. 
Brackett  v.  The  Hercules,  Gilp.  184. 

p.  467. 
Bradburn  v.  Great  Western  R.  Co.,  44 

L.  J.  (Exch.)  9;  s.  c.  L.  R.  10  Exch. 

1.     p.  572. 

c  29  Gratt.  446. 
Bradley   v.  Northern   Transp.  Co.,  15 

Ohio  St.  553.     p.  481. 
Brand  v.  Troy,  8  Barb.  368.    pp.  365, 

446. 

c  24  Md.  121;  25  Md.  387;  18  N.  Y.  258;  1 
E.  D.  Smith,  272 ;  6  Duer,  641 ;  20  Ohio ,  447 ;  2 
Hilt.  38;  8  Barb.  435;  40  Miss.  458;  48  Miss. 
124, 123, 127;  24  Md.  103;  22  Barb.  583,  584;  13 
Barb.  15,  496;  57  Me.  214;  18  N.  Y.  258;  32 
Barb.  659. 
Brasfield  v.  Lee,  1  Ld.  Raym.  329.    p. 

564. 
Brass  v.  Maitland,  6  El.  &  Bl.  470;  s.  c. 

26  L.  J.  (Q.  B.)  49.     p.  145. 

c  2  Abb.  0.  C.  222;  1  Sawyer,  448;  15  Wall. 
.535;  7  Lans.  213;  107  Mass.  .576;  64  Barb.  213; 
11  C.  B.  (N.  8.)  562,563;  2  Cliff.  27;  2  Sprague, 
36. 
Brazier  v.  Polytechnic  Inst.,  1  Fost.  & 

Fin.  712.     p.  153. 
Breen  v.  Texas  etc.  R.  Co.,  50  Texas, 

48.     p.  70. 
Brehm  v.  Great   Western    R.  Co.,  34 


Barb.  256.     pp.  211,   220,  221,   559, 

562,  563. 

«•  2  Col.  457,  459;  2  Mont.  526. 
Brehme  v.  Adams  Express  Co.,  25  Md. 

328.     p.  386. 
Bremner  v.  Williams,  1  Car.  &  P.  414. 

pp.  115,  117,  119,  126,  127,  130,  138, 

145,  155,  198,  236,  453. 

e  48  N.  H.  313;  8  Best  &  S.  379,  391,401; 
L.  R.  2  Q.  B.  419,  429,  437 ;  36  L.  J.  (Q.  B.)  185, 
190 ;  11  Gratt.  715.  d  9  Mete.  7, 10.  ?  L.  R.  4 
Q.  B.  388. 

Brennan  v.  Fair  Haven  etc.  R.  Co.,  45 

Conn.  284.     p.  445. 
Bretherton  v.  Wood,  3  Brod.  &  B.  54 ; 

s.  c.  9  Price,  408.     pp.  26,  28,  116, 

121,  132,  542,  544,  545. 
Bridge  v.  Grand  Junction  etc.  R.  Co., 

3  Mee.  &  W.  244,     pp.  251,  275,  276, 

277,  278,  279,  280,  284. 

c  6  Cent.  L.  J.  46;  16  Pa.  St.  466;  19  Comi 
575;  31  Barb.  388;  18  N.  Y.  252;  17  Barb.  97; 
10  Ch.  Leg.  N.  121;  10  Mee.  &  W.  548,  549;  6 
Jur.  955;  12  L.  J.  (Exch.)  11;  20  111.  493;  3 
C.  B.  15;  10  Jur.  884;  15  L.  J.  (C.  P.)  304;  25 
Vt.  123;  6  Duer,  26;  25  Me.  48;  13  Ga.  88;  26 
Ga.  270;  24  N.  J.  L.  270,  283;  101  Mass.  465;  37 
Cal.  423;  19  Pa.  St.  301;  29  Md.  437;  15  Ind. 
489;  12  Mete.  418;  95  U.  S.  442;  2  C.  P.  Dir. 
373 ;  47  Pa.  St.  304 ;  22  Vt.  222, 223 ;  6  Iowa,  452 ; 
61  Mo.  .590;  52  N.  H.  554;  9  Wis.  218,  219;  47 
Miss.  222 ;  2  Col.  154, 159;  12  C.  B.  (N.  S.)  9;  2 
Denio,  439;  8  C.  B.  1.30,  131;  15  Q.  B.  283;  5 
El.  &  Bl.  201;  38  Ala.  S5,  88;  46  Pa. -St.  159;  6 
Gray,  72;  13  Barb.  497;  6  Ohio  St.  109;  4  Am. 
L.  Reg.  (N.  s.)  17 ;  9  La.  An.  442 ;  6  Cent.  L.  J. 
46 ;  18  N.  Y.  252 ;  20  Wis.  535 ;  29  Vt.  428 ;  L.  R. 
10  Exch.  53;  44  L.  J.  (Exch.)  93.  d  43  Wis. 
526;  6  Cent.  L.  J.  430;  16  N.  \'.  343. 

Bridges  v.  North  London  R.  Co.,  40 
L.  J.  (Q.  B.)  188 ;  s.  c.  L.  R.  6  Q.  B. 
377;  19  Week.  Rep.  824;  24  L.  T. 
(N.  s.)  835;  43  L.  J.  (Q.  B.)  151 ;  L. 
R.  7  H.  L.  213;  23  Week.  Rep.  62; 
30  L,  T.  (N.  s.)  844 ;  43  L.  J.  (Q.  B.^ 
151;  L.  R.  7  Q.  B.  213;  23  Week. 
Rep,  62;  30  L.  T.  (n.  s.)  844  (revers- 
ing judgment  of  Exchequer  Cham- 
ber) ;  40  L.  J.  (Q.  B.)  188.  pp.  230, 
231,  268,  272,  563. 
c  2  McAi-thur,  50 ;  28  Mich.  453 ;  2  Q.  B.  Di7 

87,  89;  2  Exch.  Div.  251,  252;  L.  R,  9  C.  P.  lU; 

43  L.  J.  (C.  P.)  139;  L.  R.  8  Q.  B.  168,  169,  178, 

181,  182;  42  L.  J.  (Q.  B.)  109;  Irish  Rep.  3  C. 

L.245;  36  Upper  Canada  Q.  B.  371;  37  Upper 


TABLE    OF    CASES    CITED. 


XVll 


Canada  Q.  B.  467.    rt  3  App.  Cas.  199,  200,  201, 

202,  208;  L.  R.  7  C.  P.  327 ;  41  L.  J.  (C.  P.)  143. 

Brien  v.  Bennett,  8  Car.  &  P.  724.  p. 
42, 

Briggs  V.  Grand  Trunk  E.  Co.,  24  Up- 
per Canada  Q.  B.  510.  pp.  70,  71, 
376,  377. 

Briggs  V.  Taylor,  28  Vt.  180.  p.  357. 
c  3  Cliff.  422 ;  48  JJ.  H.  313 ;  20  Minn.  133. 

Briggs   V.  Vanderbilt,  19    Barb.   222. 
pp.  466,  555,  567. 
T  28  N.  Y.  224. 

Brock  V.  Gale,  14  Fla.  523.    pp.  484, 

510,  537. 
Brockway  v.  Lascala,  1  Edm.  Sel.  Cas. 

135.     p.  472. 
Brooke  v.  Grand  Trunk  R.  Co.,  15  Mich, 

332.    p.  424. 
Brooke  v.  Pickwick,  4  Bing.  218;  s.  c. 

12  J.   B.  Moo.  447;    13  Eng.  Com. 

Law,  404.    pp.  451,  491, 494,  498,  512, 

523,  527. 

C  23  Md.  410;  12  Ga.  224;  19  Wend.  236,  237, 
241,  269;  10  How.  Pr.  332;  9  Lower  Canada 
Eep.  180;  44  N.  H.  330;  7  Am.  L.  Reg.  (N.  S.) 
537;  6  Blatcbf.  69;  46  N.  H.  227;  6  Cusii.  72; 
29  Ind.  364 ;  6  Hun,  547 ;  16  Pa.  St.  78. 
Brown  v.  Camden  etc.  R.  Co.,  83  Pa. 

St.  316.     p.  528. 
Brown  v.  Eastern  R.  Co.,  11  Cash.  97. 

p.  528. 

c  12  Gray,  392 ;  43  N.  Y.  268 ;  12  Wall.  85 ;  21 
Gratt.  673;  64  Barb.  391;  46  N.  H.  219;  14 
Allen,  437;  49  Barb.  21. 
Brown  v.  Edgington,  2  Man.  &  G.  279. 

pp. 127,  129,  137,  142, 144. 
Brown  v.  Great  Eastern  R.  Co.,  2  Q.  B. 

Div.  406.     p.  337. 

C  3  C.  P.  Div.  434. 
Brown  v.  Hannibal  etc.  R.  Co.,  64  Mo. 

430;  s.  c.  66  Mo.  588.     pp.  369,  375, 

557,  572. 

c  66  Mo.  .595. 
Brown  v.  Harris,  2  Gray,  359.    p.  467. 
Brown  v.  Mallett,  5  C.  B.  599.    p.  455. 
Brown  v.  Missouri  etc.  R.  Co.,  64  Mo. 

536.     pp.  44,  376, 401. 
Brown  v.  New  York  etc.  R.  Co.,  32  N. 

Y.  597;  s.  c.  34  N.  Y.  404;  31  Barb. 

835.     pp.  201,  222,  290,  294. 

c46  Pa.  St.  161;  4  Am.  L.  Reg.  (N.  S.)  14; 
36  N.  Y.  381;  63  Barb.  2G0;  3  Robt.  515;  U 
Iowa,  158;  28  Wis.  495;  35  N.  Y.  37,  44,  45;  34 


N.  Y.  29;  39  N.  Y.  361;  6  Robt.  87;  38  N.  Y. 
262.    ?  66  N.  Y.  14;  65  Barb.  151,  152,  155;  46 
Barb.  270. 
Brown  v.  The  D.  S.  Cage,  1  Woods, 

403.    p.  481. 
Bryant  v.  Rich,  104  Mass.  156;  s.c.  106 

Mass.  180.     pp.  366,  369,  581. 

C  36  Wis.  675 ;  62  Me.  88 ;  44  Iowa,  318. 
Buel  V.  New  York  etc.  R.  Co.,  31  N.  Y. 

314.     pp.  261,  267. 
Buffett  V.  Troy  etc.  R.  Co.,  36  Barb. 

420;  s.  c.  40  N.  Y.  168.     p.  433. 
Burges  v.  Wickham,  3  Best  &  S.  669; 

s.  C.33L.J.  (Q.  B.)  17.     p.  148. 
Burgess  v.  Clements,  4  Mau.  &  Sel.  305. 

p. 515. 
Burgess  v.  Great  Western  R.  Co.,  6  C. 

B.  (N.  s.)  923.     pp.  101,  107,  269. 
c  56  Me.  242 ;  26  Iowa,  145. 

Burke  v.  Broadway  etc  R.  Co.,  34  How. 

Pr. 239.     p. 553. 
Burke  v.  South-Eastern  R.  Co.,  5  C.  P. 

Div.  1 ;  s.  c.  28  Week.  Rep.  306 ;  20 

Alb.  L.J.  498.     p.  437. 
Bumell  V.  New  York  etc.  R.  Co.,  45  N. 

Y.  184.     pp.  432,  534,  535,  539. 

c  57  N.  Y.  555,  557,  558;  37  N.  Y.  Superior 
Ct.  532. 
Burnham  v.  Grand  Trunk  R.  Co.,  63 

Me.  298.     p.  70. 
Burns  v.  Bellefontaine  etc.  B.  Co.,  50 

Mo.  139.     pp.  261,  444.     (In  full,  p. 

438.) 
Burns  v.  Cork  etc.  R.  Co.,  13  Irish  Rep. 

C.  L.  (N.  s.)  543.     pp.  135,  147,  157, 
199,  221,  554. 

c  L.  R.  4  C.  B.  391;  8  Best  &  S.  385,  403;  L. 
R.  2  Q.  B.  425,  440;  36  L.  J.  (Q.  B.)  188, 195;  L. 
R.  5  Q.  B.  195,  512. 

Burns  «.  Elba,  32  Wis.  605.     P- 271. 
Burrows  v.  Erie  etc.  R.  Co.,  63  N.  Y. 

556.     pp.  227,  228,  267. 
Bushv.  Johnson,  23  Pa.  St.  209.    p.  552. 
Butcher  v.  London  etc.  R.  Co.,  16  C.  B. 

13;  s.  c.  1  Jur.  (x.  s.)  427;  24  L.  J. 

(C.  P.)  137;  3  Am.  L.  Reg.  694;  21) 

Eng.  Law  &  Eq.  347.     pp.  611,  518, 

532. 

c  2  Jur.  (N.  8.)  141 ;  19  Wis.  42 ;  41  Ala.  504  ; 
35  Vt.  620 ;  3  O.  P.  Div.  226,  227 ;  18  Alb.  L.  J. 
33 ;  L.  R.  6  C.  P.  50,  51 ;  40  L.  J.  (C.  P.)  12. 
«I  28  Upper  Canada  Q.  B.  380. 


XVlil 


TABLE    OF    CASES    CITED. 


Butterfield  v.  Forrester,  11  East,  60;  s. 

c.  2  Thomp.  on  Neg.  1104.     pp.  251, 

275,  276,  277,  278,  551. 

c  68  Me.  557;  2  0.  B.  (N.  S.)  739;  105  Mass. 
207;  4  Ind.  100;  6  Gill,  205;  10  Mich.  198;  4 
Mo.  App.  489;  2  Bradw.  39;  31  Miss.  193;  47 
Miss.  419;  2  Col.  158,159;  12  C.  B.  (N.  S.)  9;  3 
Mee.  &  W.  248;  3  Fla.  26;  24  N.  J.  L.  832;  7 
Taun.  514;  38  Ala.  85;  18  Cal.  356;  22  Vt.  21, 
22,  25 ;  6  Iowa,  4,')2 ;  2  Pick.  624 ;  61  Mo.  591 ;  52 
N.  H.  554;  9  Wis.  217;  25  Ind.  197;  24  Vt.  496; 
22  N.  J.  L.  189 ;  21  Pick.  147 ;  13  111.  587 ;  6  Cent. 
L.  J.  46;  45  Md.  91;  41  X.  H.  50;  2  Woodb.  & 
M.  345;  4  Per.  &  Dav.  676;  1  Q.  B.  36;  5  Jur. 
798 ;  12  Mete.  418 ;  9  Pa.  St.  194 ;  16  Pa.  St.  465, 
460,  468;  19  Conn.  572;  33  Ind.  356,  363,  367;  20 
N.  Y.  69;  3  Ohio  St.  189,  190;  29  Md.  437;  2 
Cash.  604,  605;  32  Barb.  167;  15  Conn.  131;  18 
X.  Y.  251;  5  El.  &  Bl.  855;  2  Jur.  (N.  S.)  117; 
17  Barb.  97 ;  5  Duer,  25 ;  ^  N.  J.  L.  269,  270, 283 ; 
35  Ind.  466;  10  Ch.  Leg.  N.  121;  33  Barb.  416; 
63  Mo.  420;  30  Ala.  329;  26  Conn.  597,  601;  10 
Mee.  &  W.  549;  12  Pick.  177;  26  Me.  240;  11 
Wis.  169, 170,  171 ;  63  N.  C.  349 ;  6  Jur.  955 ;  12 
L.  J.  (Exch.)  11;  23  Wend.  452;  61  Barb.  456; 
2N.  H.  363;  2  McMull.  408;  25  Me.  49;  18  Ga. 
686 ;  13  Ga.  88 ;  26  Ga.  270 ;  4  Jur.  320 ;  29  Conn. 
209 ;  20  111.  488,  491,  493 ;  53  Ala.  79 ;  67  Me.  104 ; 
6  Cow.  191;  3  C.  B.  9;  8  Gray,  132;  27  Conn. 
412 ;  95  U.  S.  442 ;  20  Wis.  535 ;  6  Cent.  L.  J.  46 ; 
26  111.  376;  18  N.  Y.  251;  7  Wis.  431;  41  N.  H. 
50;  37  Mo.  456;  7  Bosw.  135;  104  Mass.  142;  37 
Mo.  553. 

Button  V.  Hudson  River  R.  Co.,  18  N. 

Y.  248.     p.  553. 

c  7  Bosw.  135;  32  Barb.  169;  4  Daly,  331;  19 
How.  Pr.  203;  49  Barb.  531;  33  Barb.  416;  16 
Abb.  Pr.  349;  34  Cal.  164;  50  How.  Pr.  128; 
1  Keyes,  572;  33  How.  Pr.  199;  2  Abb.  App. 
Dec.  381;  20  >r.  Y.  71;  5  Hun,  480;  25  Mich. 
283 ;  42  N.  Y.  361 ;  11  Wis.  171 ;  35  Ind.  466 ;  13 
Ind.  89;  38  Vt.  51;  15  VYall.  407;  65  Barb.  152; 
4  Jones  &  Sp.  448;  25  Ind.  197;  40  Barb.  209, 
210;  6  Robt.  92,  93 ;  38  Ala.  85,  87. 
Buxton  V.  North-Eastern  R.  Co.,  L.  R. 

3  Q.  B.  549 ;  s.  c.  37  L.  J.  (Q.  B.)  549. 

pp.  412,  413,  415,  432. 

c  Irish  Rep.  6  C.  L.  124;  40  L.  J.  (Q.  B.)  94; 
L.  R.  6  Q.  B.  273 ;  L.  R.  5  0.  P.  441,  444. 

Buzzell  V.  Laconia  Man.  Co.,  48  Me. 

113.     p.  552. 

c  71   111.  420;  50  Mo.  305;  3  Dill.  325;  14 
Minn.  363;  13  Allen,  442;  39  Iowa,  621;  66  Me. 
425 ;  42  Ala.  714.     o  48  Cal.  426. 
Byrne  v.  Wilson,  Iristi  Rep.  15  C.  L. 

332.     pp.  220,  290. 

c  50  N.  H.  146 ;  39  N.  J.  L.  309,  310 ;  L.  R.  3 
Adm.  476. 


c. 

Cadwallader  v.  Grand  Trunk  R.  Co.,  9 

Lower  Canada  Rep.  169.    pp.  611, 

512,  513,  538. 
Cahill  V.  London  etc.  R.  Co.,  10  C.  B. 

(N.  s.)  154;  s.  c.  7  Jur.  (n.  s.)  1164; 

30  L.  J.  (C.  P.)  289;  9  Weeli.  Rep. 

653;  4  L.  T.  (n.  s.)  246  (affirmed  on 

appeal,  13  C.  B.  (n.  s.)  818 ;  8  Jur. 

(N.  s.)   1063;  31  L.  J.   (C.  P.)  271; 

10  Week.  Rep.   391;  3  Am.  L.  Reg. 
441).     pp.  511,  522,  523. 

c  36  Upper  Canada  Q.  B.  355,  356;  L.  R.  6 
Q.  B.  619,  621;  40  L.  J.  (Q.  B.)  303,  304;  73  111. 
353,  354,  356;  8  Best  &  S.  333;  6  Hun,  547;  56 
Me.  62;  8  Am.  L.  Reg.  (N.  8.)  399;  98  Mass. 
378. 
Caldwell  v.  Murphy,  1  Duer,  233;  s.  c. 

11  N.  Y.  419.     pp.  208,  557,  564,  571. 
c  6  Duer,  532 ;  44  Ind.  201 ;  19  111.  577;  5  Hun, 

529;  32  Barb.  659;  48  N.  H.  315,  545;  11  N.  T. 
416 ;  24  N.  Y.  193 ;  49  Me.  281 ;  1  Hilt.  283. 
Caldwell  v.  New  Jersey  Steamboat  Co., 

47  N.  Y.  282.     pp.  199,  205,  211,  212, 

216,  221,  222,  233,  480,  574,  575. 

c  58  N.  Y.  139,  141;  3  Jones  &  Sp.  130. 
Callahan  v.  Bean,  9  Allen,  401.    p.  551. 

c  58  Me.  388;  17  Mich.  120;  98  Mass.  669; 
104  Mass.  62;  14  Allen,  431. 
Cal.vc's  Case,  8  Co.  63.     pp.  33,  491, 

516. 
Camden  etc.  R.  Co.  v.  Baldauf,  16  Pa. 

St.  67.     pp.  386,  522,  523,  539. 
Camden  etc.  R.  Co.  v.  Burke,  13  Wend. 

611.     pp.  7,.  114,  121,  236,  238,  491, 

521,  526. 

cl5  Mich.  140;  30  N.  Y.  615;  3  Park.  Cr. 
Cas.  237;  21  Md.  297;  23  Md.  410;  44  Ind.  201; 
4  Iowa,  550;  29  Vt.  427 ;  24  X.  Y.  218;  32  Barb. 
659;  7  Rich.  L.  163;  7  Mete.  601;  1  Am.  Rail. 
Cas.  394;  3  E.  D.  Smith,  333;  48  N.  H.  315;  24 
N.  Y.  193;  19  Wend.  236;  9  Mete.  13;  39  Iowa, 
249;  5  Cent.  L.  J.  58. 

Camden  Transp.   Co.  v.   Belknap,   21 

Wend.  354.     pp.  514,  526. 

c  57  N.  Y.  558 ;  11  N.  Y.  490 ;  31  Conn.  283 ; 
22  Iowa,  171;  13  111.  748;  29  Ind.  861;  7  Hill, 
573 ;  1  Dakota,  360. 
Campbell    v.   Caledonian    R.    Co.,    14 

Scot.  Sess.  Cas.  (n.  s.)  806.  p.  530. 
Campbell  v.  Perkins,  8  N.  Y.  430.     p. 

418. 

c  24  N.  Y.  28L 


TABLE    OF    CASES    CITED. 


XIX 


Canadian   (The),  1  Brown's  Adm.  11. 

pp.  466,  568,  570. 
Candace  (The),  1  Low.  126.    p.  482. 
Candee  v.  Pennsylvania  E.  Co.,  21  Wis. 
582.     pp.  432,  433,  435.     (In  full,  p. 

419.) 
Cannings.  Williamstown,  1  Cush.  451. 

p.  571. 

c63  111.  320;  20  Wis.  617;  24  Md.  107;  11 
Allen,  79;  44  Iowa,  320,  321 ;  6  Nev.  232;  48  N. 
H.  545. 

Cantling  v.  Hannibal  etc.  E.  Co.,  54 

Mo.  385.     p.  512. 
Carleton    v.  Franconia    Iron    Co.,  99 

Mass.  216.     p.  226. 

c  102  Mass.  502;  42  Ind.  343;  116  Mass.  68; 
59  Me.  188;  56  Me.  506. 

Carlin  v.  Chicago  etc.  R.  Co.,  37  Iowa, 

316.     p.  552. 

C42  Iowa,  195,  681;  38  Iowa,  126,  297;  41 
Iowa,  231;  48Vt.  129. 
(^armanty  v.  Mexican  Gulf  Co.,  5  La. 

An.  703.     p.  548. 
Carpue  v.  London  etc.  R.  Co.,  5  Q.  B. 

747 ;  s.  c.  Dav.  &  M.  608 ;  3  Eng.  Rail. 

Cas.  692;  8  Jur.  464;  13  L.  J.  (Q. 

B.)  138.     pp.  137,  191,  192,  196,  207, 

211,  213. 

c38  Miss.  275;  21  Md.  291;  4  Iowa,  549;  8 
Best  &  S.  389;  L.  R.  2  Q.  B.  427;  36  L.  J.  (Q. 
B.)  189;  18  N.  T.  538,  544;  9  Rich.  L.  91;  3  E. 
D.  Smith,  333;  109  Mass.  406;  2  Fost.  &  Fin. 
733;  9  Jur.  (N.  S.)  341;  16  Barb.  117;  1  Moo. 
P.  C.  C.  116.  d  Irish  Rep.  6  C.  L.  226;  11 
Allen,  317. 
Carr  v.  Lancashire  R.  Co.,  7  Exch.  707. 

p.  390.  ' 

Carroll  v.  New  York  etc.   R.   Co.,    1 

Duer,  571.     pp.  260,  262,  333. 

C  86  Pa.  St.  145 ;  6  Duer,  415,  419 ;  34  N.  Y. 
11;  36  Mo.  435;  37  Mo.  548;  57  N.  Y.  396;  58 
Me.  196. 
Carroll  v.  Staten  Island  R.  Co.,  58  N. 

Y.  126.     pp.  197,  199,  205,  221,  223, 

224,  480,  484. 
Carter  v.  Peck,  4  Sneed,  203.    pp.  432, 

433. 

c  1  Cent.  L.  J.  .542. 
Cary  v.  Cleveland  etc.  R.  Co.,  29  Barb. 

35.     pp.  432,  534,  536. 

o  45  N.  Y.  189;  36  Barb.  428;  7  Lane.  64;  50 
Barb.  205;  24  N.  Y.  278;  12  Wall.  85. 
Caswell  V.  Boston  etc.  R.  Co.,  98  Mass. 

104.     p.  110. 

c  104  .Mass.  141 ;  103  Mass.  514. 


Caterbam  v.  London   etc.  R.  Co.,   87 

Eng.  Com.  Law,  410.    p.  98. 
Catley  v.  Wintringham,  Peake,  150.     p. 

499. 
Catlin    V.  Hill.      (See    Thorogood   v. 

Bryan.) 

c  46  Pa.  St.  159;  4  Am.  L.  Keg.  (N.  S.)17. 
Caton  V.  Burton,  Cowp.  330.  p.  460. 
Cayzer  v.  Taylor,  10  Gray,  274.    p.  222. 

c  102  Mass.  584;  46  Mo.  169;  13  Allen,  238; 
10  Allen,  233;  55  Ind.  49;  12  Minn.  372;  56  Ind. 
518;  66  Me.  425;  8  AUen,  446;  58  N.  Y.  59;  UO 
Mass.  25. 

Central  R.  Co.  v.  Green,  86  Pa.  St.  421 ; 
s.  c.  5  Week.  Jur.  297 ;  6  Cent.  L.  J. 

381.     pp.  349,  850. 
Central  R.  Co.  v.  Van  Horn,  38  N.  J.  L. 

133.     pp.  227,  231,  268,  548. 
Chaffee  v.  Boston  etc.  R.  Co.,  104  Mass. 

108.     p.  270. 
Chamberlain  v.  Chandler,  3  Mason,  242. 

pp.  314,  316,  361,  365,  463,  469,  470. 

(In  full,  p.  459.) 

c  1  Cliff.  149;  3  Cliff.  427;  36  Wis.  460;  106 
Mass.  189;  31  How.  Pr„278;  1  Sprague,  186; 
36  Wis.  672;  27  La.  An.  5, 12;  6  Ben.  371;  3 
Sawyer,  313;  57  Me.  217;  Chase's  Dec.  152. 
d  3  McAll.  105. 
Chamberlain  v.  Milwaukee  etc.  R.  Co., 

7  Wis.  425;  s.   c.  11  Wis.  238.     pp. 

552,  553,  556. 

c  11  Wis.  248;  37  Wis.  322;  23  Wis.  672;  37 
Mo.  548;  3  Sawyer,  440;  5  Biss.  317;  18  Wis. 
708;  46  Texas,  539.    ?  17  Ohio  St.  211;  2  Col. 
448;  42  Ala.  723 ;  28  Ind.  374. 
Chamberlain  v.  Western  Transp.  Co., 

44   N.  Y.   305;   s.  c.   45   Barb.   218. 

pp.  484,  485,  486,  521,  530. 
Champion  v.  Bostwick,  18  Wend.  175. 

p.  412.    (See  Bostwick  v.  Champion.) 

c2  Sawyer,  25;  12  Wall.  85;  19  Barb.  237; 
n  Allen,  296;  99  Mass.  257. 
Chapman  v.  New  Haven  R.  Co.,  19  N. 

Y.  341.     pp.  283,  284,  290. 
Check  V.  Little  Miami  R.  Co.,  2  Disney, 

237;  s.  c.  7  Am.  L.  Reg.  427,     pp. 

514,  530. 
Cheney  v.  Boston  etc.  R.  Co..,  11  Mete. 

121.     pp.  70,  377. 

o  67  Me.  165;  17  Alb.  L.  J.  .367;  6  Cent.  L. 
J.  382;  22  Barb.  132;  47  Iowa,  86;  51  111.  340; 
10  Ch.  Leg.  N.  78;  6  Kcporter,  490;  50  Ind. 
144;  2  Cent.  L.  J.  830;  15  Gray,  450;  63  Mc. 


XX 


TABLE  OF  CASES  CITED. 


304 ;  71  Pa.  St.  436,  437 ;  43  lU.  423 ;  46  N.  H. 
219,  221,  222 ;  55  Ind.  372 ;  14  Allen,  436. 
Chicago  V.  Major,  18  111.  349.     p.  552. 

•c83  111.  205,  206,  207;  26  111.  389,  401,  402, 
40;j;  IS  Ohio  St.  412;  75  111.  471;  42  111.  176;  45 
111.  205 ;  43  111.  346;  48  111.  412;  20  lU.  490,  496; 
3  Dill.  126;  52  111.  295;  53  Ind.  156;  22  Wis. 
618,  619;  5  Wall.  106;  1  Ch.  Leg.  N.  105;  41 
Iowa,  80;  8  JMinn.  166. 
Chicago  City  R.  Co.  v.  Munford,   21 

Alb.  L.  J.  214.     p.  442,  444, 
Chicago  City  R.  Co.  v.  Young,  62  111. 

238.     p.  562. 
Chicago  etc.  R.  Co.  v.  Bell,  70  111.  102. 

p.  271. 
Chicago  etc.  R.  Co.  v.  Boger,  1  Bradw. 

472.     pp.  340,  376,  377,  557. 
Chicago  etc.  R.  Co.  v.  Boyce,  73  111. 

510.     pp.  512,  534,  535. 
Chicago  etc.  R.  Co.  v.  Clayton,  78  111. 

616.     p.  514. 
Chicago  etc.  R.  Co.  v.  Collins,  56  111. 

212.     p.  513. 
Chicago  etc.  R.  Co.  v.  Coss,  73  lU.  394. 

pp.  270,  554. 

c  2  Bradw.  43. 
Chicago  etc.  R.  Co.  v.  Dewey,  26  111. 

255.     p.  270. 

c  42  Miss.  614;  73  111.  397;  81  111.  454;  46  111. 
83;  71  111.  607;  49  111.  503,  504;  52  111.  330;  28 
Mich.  42 ;  72  111.  388,  397 ;  54  111.  484 ;  37  111.  341 ; 
2  Bradw.  38. 
Chicago  etc.  R.  Co.  v.  Fahey,  52  111.  81. 

pp.  434,  520,  521. 
Chicago  etc.  R.  Co.  v.  Fairclough,  52 

m.  106.     pp.  534,  535. 

C  53  111.  232. 

Chicago  etc.  R.  Co.  v.  Fay,  16  111.  568. 

p.  333. 
Chicago  etc.  R.  Co.  v.  Fillmore,  57  111. 

265.     pp.  107,  558,  584. 
Chicago  etc.  R.  Co.  v.  Flagg,  43  111. 

364.     pp.  341,  343,  377,  571,  579. 

C  59  Ind.  323;  79  111.  590,  591;  42  111.  429;  43 
111.  422 ;  67  111.  114,  314. 
Chicago  etc.  R.  Co.  v.  George,  19  111. 

510.     pp.  202,  224. 

c  26  111.  387 ;  88  111.  614. 

Chicago  etc.  R.  Co.  v.  Gregory,  58  111. 

272.     p.  552. 
Chicago  etc.  R.  Co.  v.  Griffln,  68  111. 

499.     pp.  301,  303,  338,  375,  376,  577. 

C  37  Mich.  346. 


Chicago  etc.  R.  Co.  v.  Hazzard,  26  111. 

373.     pp.  228,  333,  552. 

c  59  Ind.  322,  323;  41  Ind.  499;  58  Me.  197; 
42  Miss.  614;  30  111.24. 
Chicago  etc.  R.  Co.  v.  Herring,  57  111. 

59.     p.  576. 
Chicago  etc.  R.  Co.  v.  Hughes,  69  111. 

170.     p.  583. 
Chicago  etc.  R.  Co.  v.  McCarthy,  20  111. 

385.    p.  418. 
Chicago  etc.  R.  Co.  v.  Mitchie,  83  111. 

427.     p.  44. 
Chicago  etc.  R.  Co.  v.  Morris,  26  111. 

400.     p.  549. 

c  29  Gratt.  439;  1  Ch.  Leg.  N.  105;  39  Iowa, 
255;  4  Col.  81;  75  111.  471;  45  111.  205;  43  111. 
346;  48  111.  412;  53  Ind.  156;  52  111.  295;  77  111. 
72;  5  Wall.  106;  42  111.  171 ;  2  Bradw.  313.  ?  1 
Biss.  415. 
Chicago  etc.   R.  Co.  v.  Mumford,  21 

Alb.  L.  J.  214.     p.  268. 
Chicago  etc.  B.    Co.  v.  Parks,  18   111. 

460.  pp.  317,  340,  376,  579.     (In  full, 
p.  319.) 

c  42  Miss.  329;  36  Wis.  464;  7  PhUa.  13;  15 
N.  Y.  S.  C.  (T.  &  C.)  581;  51  Ind.  .570;  48  111. 
257;  43  111.  366,  368;  15  Minn.  56;  19  111.  363, 
364;  63  111.  307 ;  21  111.  189;  43  111.  423;  56  Ala. 
252.  <l  43  111.  179 ;  79  Dl.  590. 

Chicago  etc.  R.  Co.  v.  Peacock,  48  111. 
253.     pp.  340,  376,  377,  580. 
C  63  111.  307.     d  79  111.  590. 

Chicago  etc.  R.  Co.  ij.  Pondrom,  51  111. 
333 ;  S.C.2  Ch.  Leg.  N.  169.     pp.  259, 
583. 
C  39  Md.  351. 

Chicago  etc.  R.  Co.  v.  Randolph,  53  111. 

510.     pp.  67,  228,  267,  343. 

c  52  Ind.  546;  78  111.  94;  3  Cent.  L.  J.  416; 
55  Ind.  372. 

Chicago  etc.  R.  Co.  v.  Roberts,  40  111. 
503.     pp.  376,  377,  579. 
C  63  111.  307.     €l  43  III.  368 ;  79  111.  590. 

Chicago  etc.  R.  Co.  v.  Scates,  9  Cent. 

L.  J.  167.     pp.  106,  226,  267. 
Chicago  etc.  R.  Co.  v.  Shannon,  43  111. 

338.     p.  550. 

c  70  111.  215;  75  111.  471;  58  111.  284;  S3  111- 
207;  45  111.  204;  63  111.  295;  68  111.  5.52;  48  111. 
412;  52  111.  296;  77  111.  72,  225;  71  111.  296. 
Chicago  etc.  R.  Co.  v.  Taylor,  69   111. 

461.  p.  224. 

Chicago  etc.  R.  Co.  v.  Whipple,  22  111. 
105.     p.  418, 


TABLE    OF    CASES    CITED. 


XXI 


Chicago  etc.  E.  Co.  v.  Williams,  55  111. 

185.     pp.  301,  345,  346,  574,  580. 
Chicago  etc.  R.  Co.  v.  Wilson,  63  HI. 

167.     pp.  105,  107,  223,  269. 
Chicago  etc.  R.  Co.  v.  Young,  62  lU. 

238.     p.  444. 
Child  V.  Hearn,  L.  R.  9  Exch.  176.    p. 

287. 
Chilton  V.  London  etc.  E.  Co.,  16  Mee. 

&  W.  212.     pp.  337,  373. 

C  19  111.  373;  Irish  Rep.  1  C.  L.  142,  144, 
149,  156,  159.     7  3  C.  P.  Div.  431,  434,  436. 

Chisholm  v.  Northern  Transp.  Co.,  61 

Barb.  363.     pp.  475,  485,  487,  530. 

Christie  v.  Griggs,  2   Camp.  79.    pp. 

115,  119,  126,  130,  131,  134,  135,  145, 

155,  185,  187,  191,  198,  199,  211,  236, 

238,  355,  451,  453.     (In  full,  p.  181.) 

C  2  Duv.  558;  3  Cliff.  419;  21  Md.  283,  288, 

296;  18  N  T.  411,  538;  34  Barb.  268;  38  Miss. 

275;  13  Pet.  191;  48  N.  H.  312;  4  Iowa,  549;  2 

*Mont.  526,  527;  L.  R.  4  Q.  B.  388;  8  Best  & 

8.  379,  384,  386,  401 ;  L.  R.  2  Q.  B.  1S5,  187,  188, 

194;  19  ni.  517;  58  N.  Y.  138;  13  Wend.  627;  1 

Duer,  241;  1  McCord,  447;  12  Ga.  224;  Irish 

Rep.  13  C.  L,.  546;  3  E.  D.  Smith,  333;  4  Gill, 

423;  11  Pick.  112;  L.  R.  5  Q.  B.  194;  15  111.  469; 

16  Barb.  116,  117;  9  Mete.  9;  11  Gratt.  715;  23 

N.  H.  284.     U  2  Moo.  &  S.  623. 

Cincinnati  etc.  R.  Co.  v.  Cole,  29  Ohio 

St.  126.     pp.  341,  573. 
Cincinnati  etc.  R.  Co.  v.  Marcus,  38  lU. 

219.     pp.  510,  511,  512,  520. 

C  73  111.  352 ;  56  111.  295 ;  66  111.  479.    d  73  lU. 
867. 
Cincinnati  etc.  R.  Co.  v.  Pontius,  19 

Ohio  St.  221.     p.  387. 
Citizens'  Bank  v.  Nantucket  Steamboat 

Co.,  2  Story,  32.     p.  176. 
Citizens'  Street  R.  Co.  v.  Carey,  56  Ind. 

396.     p. 442. 
City  of  Brussels  (The) ,  6  Ben.  370.    pp. 

475,  544,  546. 
City  of  Hartford  (The)  and  The  Unit, 

11  Blatchf.  290.     p.  487. 
Civil-Rights  Bill  (The),  1  Hughes,  541. 

pp.  347,  348. 
Clapp  V.  Hudson  River  R.  Co.,  19  Barb. 

461.     pp. 577, 583. 

Clark??. Barrington,41N.  H.44.    p. 220. 
c  22  Wis.  680 ;  29  Wis.  304 ;  51  Me.  140 ;  43  N. 
H.  26S;   11  N.   H.  321;   42  X.  H.  213,  215;   13 
Hun,  86;  48  N.  H.  316. 


Clark  V.  Board  of  Directors,  24  Iowa, 

267.    p.  349. 
Clark  V.  Burns,  118  Mass.  275,    pp.  472, 

518. 

c  19  Alb.  L.  J.  114. 
Clark  V.  Eighth  Avenue  R.  Co.,  32  Barb. 

657;  s.  c.  7  Bosw.  122;  36  N.  Y.  135. 

pp.  260,  261,  263,  445. 

c67  N".  Y.  55,597;  1  Sweeny,  498;  8  Hun, 
498. 

Clark  V.  Faxon,  20  Wend.  153.    p.  526. 
Clark  V.  Gray,  4  Esp.  177.     p.  491. 
Cleveland   v.  New   Jersey    Steamboat 

Co.,  68  N.  Y.  306 ;  s.c.5  Hun,  523 ;  4 

Abb.  N.  C.  462.     pp.  43,  464,  473. 
Cleveland  etc.  R.  Co.  v.  Bartram,  11 

Ohio  St.  457.     pp.  70,  329,  343. 

C  50  Ind.  144 ;  2  Cent.  L.  J.  830 ;  6  Reporter, 
490;  47  Iowa,  86;  10  Ch.  Leg.  N.  78;  5  Baly, 
51 ;  71  Pa.  St.  436, 437 ;  55  Ind.  372 ;  34  Md.  636 ; 
32  Iowa,  536;  56  Ala.  252. 
Cleveland  etc.  R.   Co.   v.   Curran,    19 

Ohio  St.  1.     pp.  46,  387,  388,  401. 

c  17  How.  369,  370;  47  Ind.  486;  5  Neb.  121; 
20  Minn.  130. 
Cleveland  etc  R.  Co.  ■».  Manson,  30  Ohio 

St.  451.     p.  265. 
Cleveland  etc.  R.  Co.  v.  Terry,  8  Ohio 

St.  570.     p.  284. 
Clussman  v.  Long  Island  etc.  R.  Co., 

9  Hun,  61.     pp.  51,  107. 
Clymer  v.  Central  R.  Co.,  5  Blatchf. 

317.     pp.  417,  418. 
Cockle  V.  London  etc.  R.  Co.,  41  L.  J. 

(C.  P.)   140;  s.  c.  L.  R.  7  C.  P.  321 ; 

20  Week.  Rep,  754;  27  L.  T.  (N.  s.) 

320;  39   L.  J.   (C.  P.)   226;  L.  R.  5 

C.  P.  457;    18   Week.   Rep.  759;  22 

L.  T.  (N.  s.)  513.     pp.  229,  231,  232, 

233,  268. 

c  28  Mich.  453;  2  Q.  B.  Div.  87;  2  Exch. 
Div.  252;  44  L.  J.  (Q.  B.)  113;  L.  R.  10  Q.  B. 
273;  Irish  Rep.  7  C.  L.  45;  40  L.  J.  (Q.  B.) 
191 ;  L.  R.  6  Q.  B.  382,  384 ;  43  L.  J.  (Q.  B.)  162 ; 
L.  R.  9  C.  P.  132 ;  43  L.  J.  (C.  P.)  139;  36  Upper 
Canada  Q.  B.  371.  «I  43  L.  J.  (Q.  B.)  11, 12; 
L.  R.  9  Q.  B.  71. 
Coger  V.  North-Western  Union  Packet 

Co.,  37  Iowa,  145.     p.  349. 

d  05  U.  S.  508. 

Coggs  V.  Bernard,  2  Ld.  Raym.  909. 
pp.  34,  40,  41,  128,  132,  137,  150,  402, 
493,  521. 


xxu 


TABLE    OF    CASES    CITED. 


Cohen  v.Dry  Dock  R.  Co.,  69  N.  Y. 

170.     pp.  368,  371,  374. 
Coheu  V.  Frost,  2  Duer,  335.     pp.  472, 

51S. 

c  19  Wis.  42;  1  Daly,  153,  154.    ?  15  Mich. 
133. 
Cohen  v.  South-Eastern  R.  Co.,  2  Esch. 

Div.  253;  s.  c.  1  Exch.  Div.  217.     p. 

526. 

c  3  C.  P.  Div.  225 ;  18  Alb.  L.  J.  33;  2  App. 
Cas.  804,  SOT. 
Cole  V.  Goodwin,  13  Wend.  251.    pp. 

5,  236, -SSI,  410,  418,  436,  526,  582. 

c  15  Mich.  127, 133 ;  30  N.  Y.  615 ;  4  Bosw. 
233,  238;  17  How.  361;  47  Ind.  486;  10  N.  H. 
4S8;  7  HUl,  563;  25  N.  Y.  461;  11  Cush.  99;  34 
N.  Y.  551;  21  Weud.  361;  29  Barb.  47,  49;  49 
Barb.  155;  11  N.  Y.  490;  ^6  Ind.  245;  16  Pa.  St. 
77,  78;  45  Barb.  119;  10  Ohio  St.  70;  14  Barb. 
526;  66  III.  477;  21  Ga.  539;  1  Woods,  517;  4 
Sandf.  S.  0. 142,  144 ;  2  Ohio  St.  U6 ;  2  Hill,  624 ; 
23  Vt.  205  ;  16  Vt.  61 ;  13  111.  750;  1  Daly,  199;  1 
E.  D.  Smith,  99;  29  Iowa,  361;  3  HUl,  20;  39 
Iowa,  249. 
Colegrove  v.  New  York  etc.  R.  Co.,  6 

Duer,  382;  s.  c.  20  N.  Y.  492.     pp. 

260,  263,  290,  545. 

c  32  N.  Y.  601 ;  11  Abb.  Pr.  (N.  S.)  420 ;  35  K. 
Y.  25;  34N.  Y.  677;  35  Pa.  St.  129;  46  Barb. 
269, 270 ;  2  Jones  &  Sp.  12 ;  65  Barb.  154 ;  2  Ben. 
237;  11  Abb.  Pr.  (x.  S.)  4:33;  8  Bosw.  354;  43 
Wis.  527 ;  6  Cent.  L.  J.  430 ;  64  X.  Y.  147 ;  46  Pa. 
St.  161 ;  56  N.  Y.  205 ;  38  N.  Y.  262 ;  4  Am.  L. 
Beg.  (N.  S.)  19 ;  51  111.  498.  ?  6  Robt.  87. 
Coleman  v.  New  York  etc.  R.  Co.,  106 

Mass.  160.     pp.  317,  339,  375. 

C  36  Wis.  463,  675. 

Coleman  v.  South-Eastern  R.   Co.,   4 

Hurl.  &  Colt.  699.     p.  264. 
Collett  V.  London  etc.  R.  Co.,  15  Jur. 

1053;  s.c.  20  L.  J.   (Q.  B.)  411;   16 

Q.  B.  984.     p.  45. 

c  51  Pa.  St.  326;  34  Upper  Canada  Q.  B. 
459,  462;  19  Ohio  St.  13 ;  6  So.  Car.  139;  37  Mo. 
549. 
Collins  V.  Albany  etc.  R.  Co.,  12  Barb. 

492.     pp.  261,  267,  557,  582. 

C  37  Mo.  264;  42  Miss.  629.    d  24  Ga.  365. 
Collins  V.  Boston  etc.  R.  Co.,  10  Cush. 

506.     p.  511. 

c  73  111.  353,  .358;  41  Miss.  678;  7  Reporter, 
622;  98  Mass.  84;  0  Hun,  547;  44  X.  H.  330, 
331;  106  Mass.  148;  33  Ind.  382. 
Colt  V.  McMechen,   6  Johns.  160.     p. 

492. 


Columbia  etc.  R.  Co.  v.  Farrell,  31  Ind. 

408.     pp.  231,  268. 
Columbus  etc.  R.  Co.  v.  Arnold,  31  Ind. 

182.     pp.  48,  222. 

e  46  Texas,  538,  5.50;  2  Col.  488 ;  5  Kan.  650; 
8  Cent.  L.  J.  14;  58  Ind.  28.     ?  49  Cal.  130. 

Columbus  etc.  R.  Co.  v.  Powell,  40  Ind. 

37.     pp.  227,  228,  267,  270. 

c  50  Ind.  144;  5  Cent.  L.  J.  830. 
Commonwealth     (The),  v.    Power,    7 

Mete'  596.     pp.  7,  26,  314,  317,  350, 

364,  377. 

c31  Ark.  51;  15  Mich.  132;  15  Gray,  24;  3 
Park.  Cr.  Cas.  237;  5  Ch.  Leg.  N.  535 ;  36  Wis. 
459,  463 ;  29  Vt.  163 ;  53  Me.  283 ;  7  Iowa,  208 ;  15 
Minn.  53;  15  Gray,  450;  36  Wis.  672,  673;  24 
Conn.  260;  15  N.  Y.  463;  18  Int.  Rev.  Rec.  55; 
11  Blatchl.  235,  236;  95  U.  S.  502;  59  Pa.  St. 
141. 
Commonwealth  (The)  v.  Vermont  etc. 

R.  Co.,  108  Mass.  7.     p.  46. 
Connolly  v.  Warren,  106  Mass.  146.     p. 

512. 
Cooley  V.  Norton,  4  Cush.  93.     p.  558. 
Cooper  V.  Iowa  etc.  R.  Co.,  44  Iowa, 

134.     p.  224. 
Cooper  V.  London  etc.  R.  Co.,  27  Week. 

Rep.  474.     p.  69. 
Copeland  v.  New  England  Ins.  Co.,  22 

Pick.  138.     p.  564. 
Coppin  V.  Braithwaite,  8  Jur.  875.    pp. 

20,  303,  375,  465,  466. 

c  5  Wall.  615. 
Corbin  v.  Adams,  6  Cush.  95.     p.  558. 
Corbin  v.  Leader,  10  Bing.  275;  s.  c.  3 

Moo.  &  P.  751;  6  Car.  &  P.  32.     p. 

468. 
Cornnian  v.  EasteiTi  Counties  B.  Co., 

4  Hurl  &  N.  781 ;  s.  c.  29  L.  J.  (Exch.) 

94;  4  Jur.  (n.  s.)  657.     pp.  83,  87, 

90,  101,  105.     (In  full,  p.  76.) 

c  26  Iowa,  145;  37  L.  J.  (Exch.)  107; 
L.  R.  3  Exch.  149;  8  C.  B.  (N.  s.)  572;  7  Jur. 
(N.  S.)  169;  39  L.  J.  (C.  P.)  335;  6  Hurl.  &  N. 
569;  6  Cent.  L.  J.  427;  36  L.  J.  (0.  P.)  23;  48 
Me.  296.  «1  5  Hun,  527. 
Costello  V.  Landwehr,  28  Wis.  522.     p. 

562. 
Corwin  v.  New  York  etc.  R.  Co.,  13  N. 

Y.  42.     p.  222. 

c20  Iowa,  193;  37  Barb.  518,  519;  27  N.  Y. 
273,  275;  25  Iowa,  142;  32  Iowa,  562;  16  Ind. 
104;  12  Gray,  59;  1  Hun,  380;  3  N.  Y.  S.  C.  (T. 
&  C.)  639;  34  N.  Y.  432;  67  N.  Y.  157;  4  Hun, 


TABLE    OF    CASES    CITED. 


XXIU 


764:  42  Mo.  IHT;  20  Wis.  257;  43  Wis.  681,  683; 
27  Barb.  228,  229;  2  Hilt.  498;  98  Mass.  564;  3 
Eeyes,  201 ;  55  Barb.  533;  12  Ind.  5,. 7;  43  N. 
Y.  507;  2  X.  Y.  S.  C.  (T.  &  C.)  586;  28  Mich. 
515 ;  26  N.  Y.  432 ;  35  N.  Y.  643,  645 ;  4  Keyes, 
131,  134;  4  Abb.  App.  Dec.  292,  352,  355;  13 
Hun,  669;  10  Ind.  .39;  16  Kan.  576;  13  Wis. 
639;  37  Barb.  198;  .32  Barb.  575;  20  Wis.  257; 
29  Barb.  649;  21  Ohio  St.  594;  18  Cal.  355;  2 
N.  Y.  S.  C.  (T.  &  C.)  389. 
Cory  V.  Carter,  48  Ind.  327.  p.  349. 
Crafter  V.  Metropolitan  B.  Co..,  1  Harr. 

164;  s.  c.  L.  R.  1  C.  P.  300;  12  Jur. 

(N.  8.)  272;  35  L.  J.  (C.  P.)   132;  14 

Week.  Rep.  334.     pp.  101,  105,  473. 

(In  full,  p.  88.) 

c  26  Iowa,  145;  28  Mich.  454;  52  N.  H.  415. 
d  5  Hun,  528. 
Craig    V.   Great  Western    R.   Co.,   24 

Upper  Canada  Q.  B.  504.     pp.   70, 

377. 

c  24  Upper  Canada  Q.  B.  516. 
Craker  v.  Chicago  etc.  R.  Co.,  36  Wis. 

657.     pp.  363,  364,  368,  369,  571,  575, 

581. 

c  44  Iowa,  318,  322 ;  39  Wis.  641 ;  42  Wis.  29, 
€G6,  667,  672,  674,  675,  676,  678;  9  Hun,  673;  42 
Wis.  29;  9  Ch.  Leg.  N.  316. 
Cram  v.  Metropolitan  R.  Co.,  112  Mass. 

38,     p.  444. 
Cramer  v.  Burlington,  42  Iowa,  315. 

p.  271. 
CraAA'ford  v.  Cincinnati  etc.  R.  Co.,  26 

Ohio  St.  .580.     pp.  69,  376. 

C  29  Ohio  St.  219. 

Creed  v.  Pennsylvania  R.  Co.,  86  Pa. 

St.  139.     pp.  51,  52,  345. 
Cregin  v.  Brooklyn  etc.  R.  Co.,  75  N. 

Y. 192.     pp.  544,  546. 
Crissey  v.  Hestonville  etc.  R.  Co.,  75 

Pa.   St.  83.     pp.  268,   443,   445,   562, 

563. 
Crocheron  v.  North   Shore  etc.  Ferry 

Co.,  56  N.  Y.  656.     pp.  101,  209,  473. 

c  68  X.  Y.  310,  313 ;  5  Hun,  527. 
Crocker  v.  New  London  etc.  R.  Co.,  24 

Conn.  249.     pp.  341,  342,  376. 

c7  Phila.  13;  15  N.  Y.  S.  C.  (T.  &  C.)  582;  7 
Iowa,  209;  7  I'.osw.  136;  19  111.  374;  36  Conn. 
291.     7  15  Minn.  56.     o  19  111.  364. 
Croft  V.  Alison,  4  Barn.  &  Aid.  590.     p. 

358. 
Croft  V.  Baltimore  etc.  R.  Co.,  1  Mc- 

Arthur,  492.     pp.  432,  436. 


Crofts  V.  Waterhouse,   11  J.  B.  Moo. 
133;  s.  c.  3  Bing.  319.     pp.  114,  115, 
117,  119,  130,  133,  153,  155,  199,  236, 
237,  238,  355,  403,  453. 
c  3  Cliff.  420;  21  Md.  286,  297;  48  N.  H.  312; 

4  Iowa,  548;  L.  R.  4  Q.  B.  388,  389;  8  Best  & 
S.  379,  383;  L.  R.  2  Q.  B.  419,  423;  6  L.  J.  (Q. 
B.)  185, 187;  11  Gratt.  11;  109  Mass.  405;  L.  R. 

5  Q.  B.  195.    d  9  Mete.  7,  10. 

Crogan  v.  New  York  etc.  R.  Co.,  18 

Alb.  L.  J.  70.     pp.  199,  206. 
Crosby  v.  Maine  etc.  R.  Co.,  69  Me. 

418;  s.  c.  8  Reporter,  819.  »p.  69. 
Crozier  v.  Boston  etc.  R.  Co.,  43  How. 

Pr.  466.     p.  531. 
Crystal  Palace  (The)  v.  Vanderpool,  16 

B.  Mon.  302.     p.  518. 
Cully  V.  Baltimore  etc.  R.  Co.,  1  Hughes, 

536.     pp.  347,  377. 
Cumberland  Valley  etc.  R.  Co.  v.  Myers, 

55  Pa.  St.  288.     pp.  49,  52. 
Cunningham  v.  Grand  Trunk  R.  Co.,  9 

Lower  Canada  Jur.  57.     p.  71. 

c  24  Upper  Canada  Q.  B.  518. 
Curran  v.  Cheeseman,  1  Cin.  Superior 

Ct.  52.     pp.  480,  554. 
Curran  v.  Warren  etc.  Man.  Co.,  36  N. 

Y.  153.     p.  553. 
Curtis  V.  Avon  etc.  R.  Co.,  49  Barb. 

148.     pp.  536,  538, 

c  57  X.  Y.  559. 

Curtis  V.  Delaware  etc.  R.  Co.,  74  N.  Y. 

116.     pp.  512,  534. 
Curtis  V.  Detroit  etc.  R.  Co.,  23  Wis. 

152;  s.  c.  27  Wis.  158.     p.  225. 
Curtis  V.  Drinkwater,  2  Barn.  &  Adol. 

169  ;  s.  c.  22  Eng.  Com.  Law,  51.     pp. 

199,  240. 

c8  Pa.  St.  484;  4  GiU,  421;  13  Vt.  325;  13 
Conn.  325. 
Curtis  V.  Grand  Trunk  etc.  R.  Co.,  12 

Upper  Canada  C.  P.  89.     pp.  338,  375. 
Ciirtis  V.  Bochester  He.  R.  Co.,  18  N.  Y. 

534;  s.  c.  20  Barb.  282.    pp. 211, 214. 

(In  full,  p.  188.) 

c  2  Col.  457  ;  33  Iowa,  269 ;  44  Miss.  484,  496, 
500,  .'iOl ;  1  Daly.  207  ;  34  Barb.  267  ;  24  X.  Y'.  218, 
219;  48  X.  Y'.  211;  3  Jones  &  Sp.  130;  2  Ben. 
239;  28  X.  Y.  225;  35  Barb.  199;  39  X.  Y.  229; 
11  Wall.  134. 
Curtissv.  Rochester  etc.  II.  Co.,  20  Barb. 

282.     (See  Curtis  v.  Rochester  etc. 


XXIV 


TABLE    OF    CASES    CITED. 


K.  Co.,  18  N.  Y.  534.)     pp.  551,  564, 
569,  571. 

D. 

Dale  V.  Brooklyn  City  R.  Co.,  1  Hun, 

146.     pp.  444,  565. 
Dale  V.  Hall,  1  Wils.  281.    pp.  132,  452. 
Daley  v.  Norwich  etc.  R.  Co.,  26  Conn. 

591.     p.  293. 
Dallas  V.  Fosdick,  40  How.  Pr.   249. 

p.  349. 
Dalyell  v.  Tyrer,  28  L.  J.   (Q.  B.)  52. 

p.  285. 
Damont  v.  New  Orleans  etc.  R.  Co.,  9 

La.  An.  441.     pp.  227,  228,  267. 

c  23  La.  An.  464. 
Daniel  v.  Metropolitan  R.  Co.,  L.  R.  5 

H.  L.  45;  37  L.  J.  (C.  P.)  280.     pp. 

208,  562. 

c  8  Hun,  602;  L.  R.  9  Exch.  161;  43  L.  J. 
(Exch.)  107. 
Daniel  Ball  (The),   10  Wall.   557.     p. 

481. 
Dansey  v.  Richardson,  3  El,  &  Bl.  144. 

p.  531. 
Danville  etc.  Turnpike  Co.  v.  Stewart, 

2  Mete.  (Ky.)  119.     p.  290. 
Dascomb  v.  Buffalo  etc.   R.   Co.,   27 

Barb.  221.    p.  562. 
David  V.  Moore,  2  Watts  &  S.  230.    p. 

538. 

C  1  Hilt.  282. 

Davidson  v.  Graham,  2  Ohio  St.  131. 

pp.  387,  393,  525,  526. 
Davies  v.  Mann,  10  Mee.  &  W.  546;  s.c. 

2    Thomp.   on  Neg.  1105.     pp.  251, 

257,  276,  278. 

c  6  Gra.v,  72 ;  6  Ohio  St.  109 ;  2  0.  B.  (N.  s.) 
756;  4  Ind.  98;  2  Sawyer,  29;  6  Oent.  L.  J.  46; 
45  Md.  491 ;  16  Pa.  St.  466 ;  22  Vt.  223 ;  L.  R.  4 
C.  P.  621 ;  19  Conn.  576 ;  18  N.  Y.  258 ;  8  La.  An. 
324;  17  Barb.  97;  6  Iowa,  452;  38  Ala.  85,86; 
10  Ch.  Leg.  X.  121;  1  Handy,  202;  20  111.  494; 
L.  R.  9  Exch.  74 ;  52  N.  H.  553,  554 ;  5  El.  & 
Bl.  202;  43  L.  J.  (Exch.)  75;  L.  R.  10  Exch. 
107 ;  44  L.  J.  (Exch.)  78,  93 ;  1  App.  Gas.  759 ;  9 
■\Vi8.  218;  31  Miss.  193;  15  Q.  B.  283;  27  Conn. 
406;  5  Duer.  27;  5  Hun,  480;  3  Ohio  St.  1!)4; 
44  Md.  127;  24  Vt.  495;  6  Ind.  145;  13  Ga.  88; 
24  X.  J.  L.  270,  283 ;  45  Iowa,  32 ;  37  Cal.  423 ;  23 
X.  J.  L.  189;  12  C.  B.  (N.  S.)  9;  10  C.  B.  (N.  s.) 
575;  29  Md.  436;  15  Ind  489;  95  U.  S.  442;  3 
liich.  L.  126;  52  Mo.  439;  2  Col.  159;  37  Mo. 
650. 


Davis  V.  Cayuga  etc.  R.  Co.,  10  How. 
Pr.  330.     pp.  42,  513,  514. 
C  30  X'.  Y.  617. 

Davis  V.  Great  Western  etc.  R.  Co.,  20 

Upper  Canada  Q.  B.  27.    pp.  65,  376. 
Davis  V.  Kansas  City  etc.  R.  Co.,  53 

Mo.  317.     pp.  67,  224,  259. 
Davis  V.  London  etc.  R.  Co.,  2  Post.  & 

Fin.  588.     p.  105. 
Davis  V.  Michigan  etc.  R.  Co.,  20  HI. 

407 ;  s.  c.  22  111.  278.    pp.  511,  513,  514, 

538. 

c  30  X.  Y.  612;  22  111.  214;  15  Mich.  127;  78 
HI.  617,  618;  24  111.  .336. 

Dawson  v.  Manchester  etc.  R.  Co.,  7 

Hurl.  &  N.  1037.     p.  212. 
Day  V.  Brooklyn  etc.  R.  Co.,  12  Hnn^ 

435.     pp.  293,  445. 
Day  V.  Oicen,  5  Mich.  520.     pp.  28,  29, 

314,  316,  317,  335,  346,  348.     (In  full, 

p.  306.) 

c  36  Wis.  459,  460,  462,  463,  672;  37  Mich. 
344;  46  X.  H.  219,223. 

Day  V.  Woodworth,  13  How.  363.    p. 

573. 
Dearden  v.  Townsend,  L.  R.  1  Q.  B. 

10;  s.c.  12  Jur.  (x.  s.)  120;  14  Week. 

Rep.52;  13  L.T.  (x.s.)  323.     p.  337. 

c  3  C.  P.  Div.  433;  Irish  Rep.  3  0.  L.  526; 
Irish  Rep.  1  C.  L.  135,  144,  140,  152,  158,  159. 
De  Beuedetti  v.  Mauchin,   1  Hilt.  213. 

p.  553. 

c  43  Vt.  206. 

De  Cuir  v.  Benson,  27  La.  An.  1.     p. 

346. 
Delhi  V.  Woodruff,  10  Cent.  L.  J.  66. 

pp.  531,  532. 
DelamartjT  v.  Missouri  etc.  R.  Co.,  24 

Wis.  578.     pp.  229,  233,  268. 

c  30  Ohio  St.  234,  235. 

Del  Valle  v.  Str.  Richmond,  27  La.  An. 

90.     pp.  510,  518. 
Dennis  v.  Clark,  2  Cash.  347.     p.  547. 
Dennison  v.  The  Wataga,  1  Phila.  468. 

pp.  466,  467. 
Demiy  v.  New  York  etc.  R.  Co.,  5  Daly, 

50.     p.  70. 
Denton  v.  Great  Northern  E.  Co.,  5  El. 

&  Bl.  860;  s.  c.  2  Jur.  (x.  s.)  185;  25 

L.  J.  (Q.  B.)  129 ;  34  Eng.  Law  &  Eq. 

154.     pp.  66,  67.     (In  full,  p.  53.) 

c  52  N.  H.  600,  604;  19  C.  B.  (N.  S.)  319;  14 


TABLE    OF    CASES    CITED. 


XXV 


AUen,  437;  34  L.  J.  (0.  P.)  266;  11  Jur.  (N.  S.) 

731,732;  3  Xeb.  54. 

Derwort  v.  Loomer,  21  Conn.  245 ;  s.  c. 

1  Am.  L.   Reg.   479.     pp.  205,  242, 

563. 

c  48  N.  H.  315 ;  11  Gratt.  712. 
Detroit  etc.  R.  Co.  v.  Van  Steinburg, 

17  Mich.  99.     pp.  552,  563, 
Dexter  v.  Syracuse  etc.  R.  Co.,  42  N. 

Y. 326.     pp.  510,  512. 

c  6  Hun,  547;  9  Ilun,  671. 
Deyo  V.  New  York  etc.  R.  Co.,  34  N.  Y. 

9.     pp.  214,  553. 

c  36  N.  Y.  381 ;  4  Daly,  488;  5  Hun,  526. 
Dibble  v.  Brown,   12  Ga.  217;  s.  c.  2 

Am.  L.  Reg.  317.     pp.  510,  511,  512, 

514,  521,  522,  538,  539. 

C  9  Hun,  671 ;  25  Ga.  64. 
Dickens  v.  New  York  etc.  R.  Co.,  28 

Barb.  41 ;  s.  c.  1  Abb.  App.  Dec.  504. 

pp.  226,  270,  563. 

C  1  Biss.  415. 
Dickey  v.  Maine  Tel.  Co.,  46  Me.  483. 

p.  552. 
Dickinson  v.  Colter,  45  Ind.  445.    p. 

558. 
Dietrich  v.  Pennsylvania  R.  Co.,  71  Pa. 

St.  432.     pp.  70,  71,  377. 

c  72  Pa.  St.  235;  52  Ind.  546;  6  Reporter, 
490;  47  Iowa,  86;  10  Oh.  Leg.  N.  78;  51  Cal. 
428;  13  Hun,  362;  76  Pa.  St.  73;  55  Ind.  372;  54 
N.  Y.  516. 
Dill  V.  South  Carolina  R.  Co.,  7  Rich, 

L. 158.     p.  521. 

c  21  Gratt  669. 
Dillaye  v.  New  York  etc.  R.  Co.,  56 

Barb. 30.     pp.  109,  235,  269, 
Dillon  V.  Union  Pacific  R.  Co.,  3  Dill. 

319.     p.  553. 

c  119  Mass.  414;  7  Reporter,  61. 
Dininny  v.  New  York  etc.  R.  Co.,  49  N. 

Y. 546.     p. 534. 

C  57  N.  Y.  556. 

District  v.  Saville,  9  Am.  L,  Rev.  584. 

p.  347. 
Ditcham  v.  Chivis,  1  Moo.  &  P.  735; 

s.  c.  4  Bing.  706.     p.  555. 
Ditchett  V.  Spuyten  Duyvil  etc.  R.  Co., 

5  Hun,  105.     p.  271. 
Doe  V.  Benjamin,  9  Ad.  &  E.  644,    p, 

554. 
Doggett  V.  Illinois  etc.  R.  Co.,  34  Iowa, 

284,     pp.  252,  265. 


Donnell  v.  The  State,  48  Miss.  661.    p. 

347. 
Doorman  v.  Jenkins,  2  Ad.  &  E.  261 ; 

s.  c.  4  Nev.  &  M.  174.     p.  75. 
Dorr  V.  New  Jersey  Steam  Nav.  Co.,  11 

N.  Y.  485;  s.  c.  4  Sandf.  8.  C,  136. 

pp.  382,  394. 
Doss  V.  Missouri  etc.  R.  Co.,  59  Mo. 

27 ;  s.  c.  21  Am.  Rep.  371 ;  2  Cent.  L. 

J. 539.     pp.  50,  225, 226,  227,  267,  575. 
Dougan  v.  Champlain  Transp.  Co.,  56 

N.  Y.  1,     pp.  217,  266,  473,  476,  487, 

543. 

c  58  N.  Y.  143. 
Dougherty  v.  Chicago  etc.  R.  Co,,  86 

111.  407.     pp.  227,  228,  267. 
Downs  V.  New  York  etc.  R.  Co.,  36 

Conn.  287.     pp.  69,  336,  338. 

c  37  Micb.  346.    d  28  Conn.  560. 
Doyle  V.  Kiser,  6  Ind.  243.     pp.  511, 

513,  522,  538. 

c  8  Bush,  474;  30  N.  Y.  612;  41  Miss.  679;  3a 
Ind.  382. 
D.  R.  Martin  (The),  11  Blatchf.  233; 

s.  c.  18  Int.  Rev.  Rec.  55.    pp.  29,  351. 
Dressier  v.  Davis,  7  Wis.  527.    pp.  652, 

553. 
Drew  V.  Central  Pacific  R.  Co.,  51  Cal. 

425.     pp.  70,  377. 
Drew  V.  Sixth  Avenue  R.  Co.,  26  N.  Y. 

49.     p.  370. 
Dryden  v.  Grand  Trunk  R.  Co.,  60  Me. 

512.     p.  70. 
D.  S.  Gregory  (The),  2  Ben.  226,    pp, 

565,  572,  574. 
Dublin  etc.  R.  Co.  v.  Slattery,  3  App. 

Cas.  1155;  s.  c.  Irish  Rep,  10  C,  L, 

256.     pp.  234,  269,  562. 
Dudley  v.  Smith,   1    Camp.   167.     pp. 

114,  237,  451. 

c  8  Pa.  St.  484 ;  46  N.  H.  224 ;  28  Ind.  444. 
Duff  V.  Great  Northern  R.  Co.,  41  L. 

T.  (N.  8.)  197 ;  s.  c.  20  Alb.  L.  J,  398, 

pp.400,  401. 
Duffy  V.  Thompson,  4  E.  D.  Smith,  178. 

pp.  511,512,  513. 

c  30  N.  Y.  612,  617 ;  4  E.  D.  Smith,  458. 
Duke  V.  Great  Western  R.  Co.,  14  Up- 
per Canada  Q.  B.  369.     pp. 336,  376. 

c  12  Upper  Canada  C.  P.  93 ;  48  Vt.  236. 
Du  Laurans  v.  First  Division  St.  Paul 


XXVI 


TABLE    OF    CASES    CITED. 


etc.  E.  Co.,  15  Minn.  49.    pp.  335, 

341,  342,  376,  575,  577,  588. 
Dunlap  V.  International  Steamboat  Co., 

98  Mass.  371.     pp.  485,  511,  518,  530. 

c  73  ni.  355,  357 ;  106  Mass.  648 ;  9  Hun,  671 ; 
7  Reporter,  623. 
Dunn  V.  Grand  Trunk  B.  Go.,  58  Me. 

187.     pp.  52,  344,  345,  445.     (In  full, 

p.  328.) 

c  .33  Wis.  54,  63;  59  Ind.  333;  20  Minn.  134; 
56  Ala.  252;  57  X.  Y.  391,  392;  15  Alb.  L.  J.  62. 
d  64  Mo.  475.    ?  49  Texas,  48. 
Dunphy  v.  Erie  R.  Co.,  10  Jones  &  Sp. 

128.     p.  70. 
Durant  v.  Palmer,  29  N.  J.  L.  544.    p. 

552. 

c  32  N.  J.  L.  168 ;  33  N.  J.  L.  264,  438. 
Dwight  V.  Brewster,  1  Pick.  50.     p. 

501. 
Dyer  v.  Talcott,  16  111.  300.    p.  552. 
Dysart  v.  Montgomery,  Irish  Rep.  8  C. 

L.  245.     p.  474. 

E. 

East  India  Co.  v.  Pullen,  Stra.  690.    pp. 

515,  516. 
East  Saginaw  Street  R.  Co.  v.  Bohn, 

27  Mich.  503.     pp.  291,  345,  445. 
Eastern  Counties  R.  Co.  v.  Broom,  6 

Exch.  314;  s.  c.  20  L.J.  (Exch.)  196. 

pp.  373,  545. 

C  30  L.  J.   (Q.  B.)  150,  152;  3  El.  &  El.  678, 
683 ;  L.  R.  3  C.  P.  643 ;  Irish  Rep.  5  C.  L.  16 ; 
19  111.  373;  Irish  Rep.  1  C.  L.  146;  15  Upper 
Canada  C.  P.  440. 
Eaton  V.  Boston  etc.  R.  Co.,  11  Allen, 

500.     p.  291, 

c  97  Mass.  368 ;  5  Hun,  526. 
Eaton  V.  Delaware  etc.  R.  Co.,  57  N. 

Y.  382.     p.  344. 

d  66  N.  Y.  619. 

Eckert  v.  Long  Island  R.  Co.,  43  N.  Y. 

502 ;  s.  c.  57  Barb.  555.     p.  20. 

c  53  Ala.  57,  58 ;  6  Jones  &  Sp.  418;  13  Hun, 
331 ;  68  Me.  556 ;  8  Cent.  L.  J.  444. 
Edgertou  v.  New  York  etc.  R.  Co.,  39 

N.  Y.  227;   s.  c.  35  Barb.  193.     pp. 

212,  234,  333. 

C59  Ind.  233;  47  Ind.  481;  1  Sweeny,  498; 
63  Barb.  266;  58  Me.  196;  4  Col.  10. 
Edwards  v.  Loudon  etc.  R.  Co.,  L.  R. 

5  C.  P.  445.     pp.  371,  372. 

c  L.  R.  6  Q.  B.  70,  71. 


Edwards  v.  Lord,  49  Me.  279.     p.  200. 

c  56  Me.  241 ;  48  N.  H.  315. 
Eldridge  v.  Long  Island  R.  Co.,  1  Sandf . 

S.  C.  89.     pp.  267,  548. 

c  24  Ga.  366. 
Elizabethport  etc.  Ferry  Co.  v.  United 

States,  5  Blatchf.  198.     p.  481. 
Elliott  V.  Rossell,  10  Johns.  1.     p.  492. 
Ellis  V.  Narragansett  Steamship   Co., 

Ill  Mass.  146.     pp.  349,  469. 
Ellsworth  V.  Tartt,  26  Ala.  733 ;  s.  c.  4 

Am.  L.  Reg.  189.     p.  436. 

e  29  Vt.  426;  7  Am.  L.  Reg.  430;  1  Cent.  L. 
J.  542. 
Elmore  v.  Sands,  54  N.  Y.  512.     pp.  65, 

71,  376. 

c  7  Hun,  142, 146;  13  Hun,  362;  3  Hun,  242; 
5  Thomp.  &  C.  557;  7  Hun,  672,  673. 
Elvira  Harbeck  (The),  2  Blatchf.  336. 

pp.  471,  520,  521,  522. 
Empire  Transp.  Co.  v.  Wamsutta  Oil 

Co.,  63  Pa.  St.  14.     p.  387. 
English  V.  Delaware  etc.  Canal  Co.,  66 

N.  Y.  454;  s.  c.  4  Hun,  683.     p.  374. 
Erie  v.  Schwingle,  22  Pa.  St.  384.    p. 

552. 

c  7  Cent.  L.  J.  129;  79  Pa.  St.  416;  56  Pa. 
St.  451;  68  P.a.  St.  407;  73  Pa.  St.  409;  9  Md. 
178;  91  U.  S.  551 ;  2  Disney,  521 ;  21  Iowa,  414; 
67  Pa.  St.  367;  63  Pa.  St.  289;  79  Pa.  St.  416; 
32  Iowa,  328;  20  Md.  480;  31  Mich.  122;  122 
Mass.  376;  71  Pa.  St.  158;  17  Minn.  314;  26 
Iowa,  268;  1  Black,  53;  16  WaU.  574.  ?  4 
Mich.  562. 
Ernst  V.  Hudson  etc.  R.  Co.,  35  N.  Y. 

9 ;  s.  c.  39  N.  Y.  61 ;  32  Barb.  159 ;  32 

How.  Pr.  262;  119  How.  Pr.  205. 

c  3  Daly,  .383;  34  N.  Y.  6.33;  40  N.  Y.  11,  31; 
14  Abb.  Pr.  (n.  S.)  30;  43  Mo.  194;  39  N.  Y. 
362,  363;  33  Ind.  360;  39  N.  J.  L.  193,  194;  34 
Iowa,  158,  160;  34  How.  Pr.  249;  4  Robt.  346; 
7Robt.  616;  49  Barb.  531,  533,  535;  3  Keyes, 
479;  1  Abb.  App.  Dec.  438;  7  Hun,  560,562; 
1  Wils.  (Indianapolis),  491;  6  Hun,  466;  37  N. 
Y.  574;  17  Mich.  118,  123;  34  Iowa,  279;  21 
Minn.  295;  .'iO  lud.  45;  32  Wis.  275;  20  .Mich. 
166;  45  N.  Y.  664;  .54  N.  Y.  471;  38  N.  Y.  442, 
443;  40  Barb.  210;  39  How.  Pr.  414,  423;  7  Lans. 
13 ;  42  X.  Y.  473 ;  41  N.  Y.  299 ;  26  Wis.  255 ;  38 
N.  Y.  51;  2  Lans.  437;  43  Mo.  262;  44  Mo.  294; 
25  Mich.  295;  1  N.  Y.  S.  C.  (T.  &  C.)  246;  38 
N.  Y.  449 ;  44  N.  Y.  469,  474.  477 ;  2  Jones  &  Sp. 
486 ;  43  How.  Pr.  411 ;  21  Ohio  St.  593 ;  36  N.  Y. 
133, 134. 
Evans  v.  Memphis  etc.  R.  Co.,  56  Ala. 

246.     p.  343. 


TABLE    OF    CASES    CITED. 


XXVll 


Evansville  etc.  R.  Co.  v.  Baum,  26  lud. 

70.     pp.  3(i(3,  368,  549. 

c  57  Me.  239,  Ua ;  51  Ind.  US. 
Evansville  etc.  R.   Co.   v.  Dexter,  24 

Ind.  411.     p.  552. 
Evansville  etc.  R.  Co.  v.  Duncan,  28 

Ind.  441.     pp.  29,  268. 

C  55  I nd.  372.     «1  44  Miss .  487. 
Evansville  etc.  R.  Co.  v.  Hiatt,  17  III. 

102.     p.  552. 
Express  Co.  v.  Kountze   Brothers,   8 

Wall.  342.     p.  392. 
Express  Co.  v.  Sands,  55  Pa.  St.  140. 

p.  386. 


Fairchild  v.  California  Stage  Co.,  13 
Cal.  599.  pp.  199,  205,  211,  238,  571. 
c  2  Mont.  522,  525,  526;  48  N.  H.  316;  6  Nev. 

•2iii,  234. 

Fairfax  v.  New  York  etc.  R.   Co.,  5 

Jones  &  Sp.  516;  s.  c.  40  N.  Y.  Supe- 
rior Ct.  128.     pp.  434,  435,  520. 
Fairmount  etc.  R.  Co.  v.  Stutler,  54  Pa. 

St.  375.     pp.  227,  546. 

c  57  Barb.  651. 
Falkiner  v.  Great  Southern  R.  Co.,  Irish 

Rep.  5  C.  L.  213.     pp.  198,  234. 
Farewell  v.  Grand   Trunk   R.  Co.,   15 

Upper  Canada  'C.   P.  427.     pp.  71, 

376. 

c  24  Upper  Canada  Q.  B.  517. 
Fai*nham  v.  Camden  etc.  R.  Co.,  55  Pa. 

St.  53.     pp.  386,  387. 
Faulkner  v.  Ohio  etc.  R.  Co.,  55  Ind. 

369.     p.  343. 

c  57  Ind.  579. 
Parish   ■;;.  Reigle,  11    Gratt.   697.     pp. 

205,  211,  217,  238,  577,  585. 

c  29  Gratt.  445 ;  13  Cal.  603 ;  2  Mont.  525,  .526. 
Farwell  v.  Boston  etc.  R.  Co.,  4  Mete. 

49  ;  S.C.2  Thomp.  on  Neg.  924.    p.  33. 

c  3  Col.  .501;  25  Md.  479;  29  Conn.  560;  49 
N.  Y.  532;  ;0  Mich.  199;  30  Barb.  2.34,  235,  236; 
34  Conn.  479;  10  Gray,  281  ;  119  Mass.  421  ;  62 
Mo.  328 ;  2  Midi.  265 ;  42  Md.  418 ;  25  N.  Y.  564 ; 
44  Cal.  82;  2  Hurl.  &  Colt.  Ill ;  9  Jur.  (n.  s.) 
,^02;  32  L.  J.  (Exch.)  209;  49  Barb.  .i77;  8 
Ohio  St.  256;  5  Hun,  493;  27  Md.  601  ;  25  Md. 
479;  17  N.  Y.  Ii57;  8  Allen,  444;  11  Iowa,  427; 
76  111.  .397;  8  Kan.  6.50;  22  Ala.  308,  311,  312;  5 
Best  &  S.  578 ;  33  L.  J.  (Q.  B.)  264,  268 ;  10  .Jur. 
(N.  8.)  1076;  59  Pa.  -St.  247,  248,  251;  28  Ind. 
377;  6  Jones  I..  248;  64  Mo.  118;  46  Te.xas,538; 


23  Pa.  St.  386;  6  Cush.  76;  4  Gray,  101;  53  Ga. 
16;  4  Jur.  (N.  s.)  772;  53  N.  Y.  552;  6  Cal.  210; 
9  Cush.  114;  1  Am.  L.  Reg.  718;  20  Md.  221, 
222;  6  Hill,  594;  7  La.  An.  324, 332;  43  Me.  270; 
11  Wis.  254;  14  Minn.  363,  364;  15  111.  551;  21 
111.  26;  51  Miss.  642;  10  Mich.  199;  43  Mo.  193; 
3  Ohio  St.  212,  215,  223 ;  12  Ohio  St.  491 ;  59  Mo. 
300;  15  Minn.  537;  10  Allen,  237,  238;  10  Cush. 
231;  3  Cush.  273;  6  Ind,  207,  208;  30  Mo.  116; 

24  Ala.  36;  102  Mass.  583;  5  N.  Y.  494,  496;  6 
Barb.  236,240,  243;  3  Ohio  St.  188;  3  Sawyer, 
442;  20  Ohio,  441,443,  445,  447;  9  Heisk.  869; 
18  Iowa,  287;  49  Barb.  326;  42  N.  H.  236;  49 
Texas,  189;  28  Ind.  377;  1  Ga.  198;  44  Cal.  82; 
44  Miss.  485;  1  Woods,  403;  38  Miss.  275;  97 
Mass.  368;  4  Iowa,  549;  24  N.  Y.  220;  11  Wis. 
254;  58  N.  V.  1.34;  20  Ohio,  435;  1  Am.  L.  Reg. 
399;  2  Am.  L.  T.  120;  14  How  489.  ?  5  Ind. 
843,  344,  345, 346,  347 ;  9  Bush,  565 ;  6  Bush  579. 
Fay  v..  Parker,  53  N.  H.  342.  p.  573. 
Feltham  v.  England,  L.  R.  2  Q.  B.  33 ; 

s.  c.  4  Post.  &  Fin.  460;  7  Best  &  S. 

676.     p.  147. 

c  13  Allen,  441 ;  62  Me.  466 ;  64  N.  Y.  9, 11 ; 
32  Md.  418 ;  L.  R.  1  Sc.  App.  339 ;  59  Pa.  St/  252 ; 
1  Exch.  Div.  255;  49  Barb.  326. 
Pent  V.  Toledo  etc.  R.  Co.,  59  111.  349; 

s.  c.  1  Thomp.  on  Neg.  136.     p.  564. 

c  12  Kan.  379;  39  N.  J.  L.  307,  311 ;  94  U.  S. 
474;  6  Cent.  L.  J.  313;  80  Pa.  St.  379;  85  111. 
14;  71  in.  574;  57  N.  H.  91. 
Fernandez    v.   Sacramento    R.    Co.,  4 

Cent.  L.  J.  82.     p.  563. 
Filer  v.  New  York  etc.  R.  Co.,  68  N.  Y. 

124;  s.  c.  49  N.  Y.  42;  59  N.  Y.  352; 

1  Abb.  N.  C.  523.     pp.  228,  267. 

c  30  Ohio  St.  2:M,  236,  237;  67  N.  Y.  55;  59 
Mo.  38 ;  2  Cent.  L.  J.  541 ;  3  N.  Y.  S.  C.  (T.  & 
C.)  45 ;  63  N.  Y.  560;  68  N.  Y.  127  ;  59  N.  Y.  352. 
Fillebrown  v.  Grand  Trunk  R.  Co.,  55 

Me.  462.     p.  66. 
Fink  V.  Albany  etc.  R.  Co.,  4  Lans.  147. 

p.  66. 
First  National   Bank  v.  Marietta  etc. 

R.  Co.,  20  Ohio  St.  259.     p.  512. 

c  17  Am.  L.  Reg.  (N.  S.)  511,  514;  72  N.  Y. 
58,  62;  9  Hun,  672;  6  Reporter,  55. 
Fisher  v.  Geddes,  15  La.  An.  14.     p. 

532. 
Fitzpatrick  v.  New  Albany  etc.  R.  Co., 

7  Ind.  436.     p.  49. 
Flaherty    v.  Grcenman,    7    Daly,   481. 

pp.  514,  524. 
Fleming  v.  Brooklyn  etc.  R.  Co.,  1  Abb. 

N.  C. 433.     pp.  46,  293. 


XXVlll 


TABLE    OF    CASES    CITED. 


Flemming  v.  Western  Pacific  E.  Co.,  49 

Cal.  253.     p.  562. 
Fletcher  v.  Boston  etc.  R.  Co.,  1  Allen, 

9.     pp.  417,  418. 
Fllnn    V.  Philadelphia    etc.  R.  Co.,  1 

Houst.  469,     pp.  27,  45,  234,  369,  401. 

c  17  How.  371;  47  Ind.  486. 
Flint  V.  Norwich  etc.  Transp.  Co.,  34 

Conn.  554;  s.  c.  6  Blatchf.  158.     pp. 

303,  304,  360,  364. 

c  3  Cliff.  426;  53  Miss.  221 ;  55  N.  Y.  113, 118; 
68  N.  Y.  310;  5  Hun,  526;  57  Me.  216;  7  Re- 
porter, 461.    d  17  Am.  L.  Keg.  (N.  8.)  515;  72 
N.  Y.  62 ;  6  Reporter,  56. 
Flint  etc.  R.  Co.  v.  Weir,  37  Mich.  111. 

p.  524. 
Foot  V.  Wiswall,  14  Johns.  304.     p.  562. 
Forbes  v.  Davis,  18   Texas,  268.     pp. 

513,  515,  545. 
Ford  V.  London  etc.  R.  Co.,  2  Fost.  & 

Fin.  730.     pp.  139,  148,  156,  199,  209. 

c  56  Me.  241;  97  Mass.  368;  8  Best  &  S.  393, 
404;  36  L.  J.  (Q.  B.)  190,  196;  L.  R.  2  Q.  B. 
430,  441 ;  L.  R.  4  Q.  B.  389. 

Fordham  v.  London  etc.  R.  Co.,  37  L. 

J.  (C.  P.)  176 ;  s.  c.  L.  R.  3  C.  P.  300 ; 

L.  R.  4  C.  P.  619.     p.  264. 

c  100  Mass.  215. 
Forks  Township  v.  King,  84  Pa.  St. 

230.     p.  284. 
Forsyth  v.  Boston  etc.   R.    Co.,   103 

Mass.  510.     p.  269. 

C  104  Mass.  141. 
Fort  Wayne  etc.  R.  Co.  v.  Gildersleeve, 

33  Mich.  133.     p.  208. 

C33  Mich.  257;  6  Reporter,  111;  68  Me.  51. 
Forward  v.  Pittard,  1  Term  Rep.  27. 

pp.  492,  493,  495,  498. 
Foster  v.  Dixfleld,  18  Me.  380.     p.  552. 
Foster  v.  The  Essex  Bank,  17  Mass. 

479,     p.  178. 
Foulkes   V.   Metropolitan  District    R. 

Co.,  4  C.  P.  Div.  267.     p.  435. 
Fowle  V.  Alexandria,  11  Wheat.  322. 

p.  564, 
Fox  V.  Glastenbury,  29  Conn.  204.    p. 

552. 
Foy  v.  London  etc.  R.  Co.,  18  C.  B, 

(X,  s.)  225;  s.  c.  13  Week.  Rep.  293; 

11  L.  T.  (N.  s.)  606.     pp.  229,  268. 

c44  Miss.  487;  28  Mich.  45:i;  44  L  J.  (Q. 
B.)  114;  L.  R.  10  Q.  B.  274;  L.  R.  3  Exch.  157; 


L.  R.  4  Exch.  121;  37  L.  J.  (Exch.)  103;  42 
Mo.  587 ;  59  Mo.  38 ;  2  Cent.  L.  J.  .541 :  49  N.  Y. 
54.    d  39  L.  J.  (Exch.)  99,  101 ;  L.  R.  3  Exch. 
153,  155;  L.  R.  4  Exch.  122,  1'34,  125. 
Fraloff  V.  New  York  etc.  R.   Co.,  10 

Blatchf.  16,     pp.  504,  512,  636,  537, 

547. 
Francis  v.  St.  Louis  Transfer  Co.,  5 

Mo.  App.  7.     pp.  566,  570. 
Freeh  v.  Philadelphia  etc.  R.  Co,,  39 

Md.  574.     p.  552, 

C  43  Md.  552. 

Freeman  v.  Newton,  3  E.   D.  Smith, 

246.     pp.  514,  529,  530,  547. 
Frederick  v.  Marquette  etc.  R.  Co.,  37 

Mich.  342.     pp.  338,  376, 
French  v.  Brunswick,  21  Me.  29.     p, 

552. 

c  11  Allen,  320;  42  Me.  527:  45  Ind.  433;  9 
Hun,  685 ;  35  N.H.  276;  6 Iowa, 452;  lCush.447. 
Frink  v.  Coe,  4  G.  Greene  (Iowa),  555. 

pp.  205,  557,  574. 

c  48  N.  H.  316. 
Frink  v.  Potter,  11  111.  406;  s.  c.  17  111. 

496.     pp.  199,  217,  266,  544,  545,  560. 

C48N.  H.  316;  88  III.  614. 
Fi-ink  V.  Schroyer,  18  111.  416,     p.  564. 

«•  54  111.  24. 
Frost  V.  Grand  Trunk  R.  Co.,  10  Allen, 

387;  s.  c.  5  Am.  L.  Reg.  (x.  s.)  573, 

pp.  101,  233,  269. • 

c  26  Iowa,  145. 
Fuller  V.  Naugatuck  R.  Co.,  21  Conn. 

557.     pp.  104,  548,  561. 

c  26  Iowa,  140 ;  48  N.  H.  315 ;  19  Ohio  St.  235. 
Fulton  V.  Grand  Trunk  R.  Co.,  17  Upper 

Canada  Q.  B.  428.     pp.  329,  340,  376, 

377. 

c  58  Me.  192, 
Furstenheim  v.  Memphis  etc,  R.  Co.,  9 

Heisk.  238.     pp.  433,  515. 

o  1  Cent.  L.  J.  542. 

G. 

Gagg  V.  Vetter,  41  Ind.  228.     p.  562. 

c  51  Ind.  154. 
Gale  V.  Delaware  etc.  R.  Co.,  7  Hun, 

670.     pp.  70,  71, 377. 

c  13  Hun,  362. 
Galena  etc.  R.  Co.  v.  Fay,  16  111.  558, 

pp.  267,  333,  552,  557. 

C  59  Ind.  323:  86  111.  376,  381,  386;  48  X.  H. 
316;  88  111.614;  16  111  567. 


TABLE    OF    CASES    CITED. 


XXIX 


Galena  etc.  R.  Co.  v.  Jacobs,  20  111.  478. 
p.  552. 

C51  111.  340;  58  111.  283,  306;  59  111.  536;  26 
Ul.  385,  386;  46  111.  83;  49  111.  503;  19  111.  510; 
52  111.  330;  64  111.  516;  72  111.  226,  388;  71  111. 
509;  80  111.  257;  9  Wis.  220;  5  Kan.  179;  6  Or. 
434 ;  37  111.  340,  341 ;  2  Bradw.  38. 
Galena  etc.  R.  Co.  v.  Loomis,  13  111.  548. 
p. 323. 

c  33  Ind.  363;  34  Iowa,  157;  67  111.  116;  63 
m.  125;  16  111.  202;  35  Iowa,  194;  68  111.  318; 
63  111.  120;  25  Mich.  291;  21  Ohio  St.  593;  41 
Iowa,  304;  27  Vt.  155;  63  111.  94;  25  111.  145;  18 
111.  468. 

Galena  etc.  R.  Co.  v.  Yarwood,  15  111. 
468;  s.  c.  17  111.  509.  pp.  211,  252, 
267,  357. 

C  33  Iowa,  534;  3  CliflF.  422;  7  Ind.  478;  24 

Ga.  366 ;  6  Cent.  L.  J.  47 ;  48  N.  H.  315 ;  37  Mo. 

547 ;  26  111.  386 ;  95  U.  S.  443 ;  88  111.  614. 

GaUin  v.  London  etc.  R.  Co.,  23  Week. 

Rep.  308 ;  s.  c.  32  L.  T.  (n.  S.)  550 ; 

44  L.  J.  (Q.  B.)  89;  L.  R.  10  Q.  B. 

212 ;  2  Cent.  L.  J.  217.     pp.  400,  401, 

402. 

c  43  Conn.  340. 
Garvey  v.  Camden  etc.  R.  Co.,  1  Hilt. 

280.     pp. 538, 539. 

Gautret  v.  Edgerton,  L.  R.  2  C.  P.  371 ; 

s.  c.  36  L.  J.  (C.  P.)  191;   15  Week. 

Rep.  638;  16L.T.  (N.  s.)  17.    p.  226. 

c  62  Mo.  561 ;  59  Mo.  36 ;  41  Ind.  250 ;  47  Ind. 

48;  46  Md.  218;  55  How.  Pr.  173;  41  N.  Y.  533; 

98  Mass.  578;  25  Mich.  9;  34  N.  J.  L.  472;  2 

Cent.  L.  J.  540. 

Gavett  V.  Manchester  etc.  R.  Co.,  16 
Gray,  501.     pp.  227,  252,  267. 
c  14  Allen,  433;  8  Allen,  235;  7  Allen,  209, 
3  Allen,  23 ;  65  N.  Y.  .560 ;  6  Cent.  L.  J.  47. 
Gay  V.  Winter,  34  Cal.  153.     p.  552. 
Gaynor  v.  Old  Colony  etc.  R.  Co.,  100 
Mass.  208.     pp.  270,  551,  562,  563. 
c  30  Ohio  St.  238,  243;  108  Mass.  12;  105 
Mass.  79;  103  Mass.  514;  .55  Ind.  50;  120  Mass. 
265;  123  Mass.  515;  6  Cent.  L.  J.  1.38;  5  Re- 
porter, 238;  104  Mass.  116,  141;  56  Ind.  520;  4 
Cent.  L.  J.  84 ;  8  Cent.  L.  J.  444. 

Gee  V.  Metropolitan  R.  Co.,  21  Week. 

Rep.  584;  s.  c.  42  L.  J.  (Q.  B.)  105; 

25  L.  T.   (N.  8.)  822;  L.  R.  8  Q.  B 

165;  28  L.  T.   (N.  s.)  282.     pp.210 

229,  263. 

c44  h.  J.  (Q.  B.)  113,  114;  L.   R.  10  Q.  B. 
274,  275;  36  Upper  Canada  Q.  B.  371. 


Georgia  etc.  R.  Co.  v.  McCurdy,  45  Ga. 

288.     pp.  227,  267,  577,  583. 
Gerhard  v.  Bates,  2  El.  &  Bl.  476.     p. 

55. 
Gibbon  v.  Paynton,  4  Burr.  2298.    pp. 

497,  498. 

Gibbons  v.  Ogden,  9  Wheat.  1.    p.  475. 

Gibson  v.  Bradford,  4  El.  &  Bl.  568; 

s.  c.  1  Jur.  (N.  8.)  520;  24  L.  J.  (Q. 

B.)  159.     p.  466. 

Gibson  v.  Small,  4  H.  L.  Cas.  404.    p. 

143. 
Giles  V.  Great  Western  R.  Co.,  36  Up- 
per Canada  Q.  B.  360.    pp.  270,  271. 
Gilhooly  v.  New  York  etc.  Steam  Nav. 
Co.,  1  Daly,  197.     pp.  472,  474,  533, 
534,  536. 
Gillan  v.  Simpkin,  4  Camp.   240.    p. 
467. 

c  13  Pa.  St.  37. 
Gillenwater  v.  Madison  etc.  R.  Co.,  5 
Ind.  339.     p.  48. 

c47  Iowa,  492;  30  111.  24;  44  Ind.  201;  58 
N.  Y.  134;  11  Wis.  250;  36  Mo.  434;  26  Barb. 
645;  6  Am.  L.  Reg.  715;  22  Ind.  29;  5  Biss.  317. 
Gillespie   v.  Newburgh,  54  N.  Y.  468. 

p.  553. 
Gillis  V.  Pennsylvania  R.  Co.,  59  Pa. 
St;  129.     pp.  50,  106,  226. 
c  2  Cent.  L.  J.  450;  35  N.  J.  L.  25;  59  Mo. 
36;  71  111.507,509;  47  Ind.  46;  65  Pa.  St.  275; 
21  Minn.  213,  214;  4  Ilun,  762;  67  111.  264;  6 
Reporter,  345;  86  Pa.  St.  79. 
Gilshaunon  v.  Stony  Brook  R.  Co.,  10 
Cush.  228.     p.  47. 

c  119  Mass.  431;  28  Ind.  377;  86  Pa.  St.  440; 
8  Kan.  517;  53  Ga.  16;  18  N.  Y.  434;  53  Pa.  St. 
456;  43  Me.  270;  102  Mass.  583;  49  Barb.  326; 
14  Minn.  364;  38  Pa.  St.  110;  10  Allen,  237,  238; 
11  Kan.  93;  62  Me.  466;  6  Reporter,  126;  59 
Pa.  St.  246,  251;  13  Ind.  369;  28  Ind.  377;  46 
Texas,  538;  17  N.  Y.  156;  76  111.  398;  18  Ind. 
230;  35  N.  Y.  565;  43  Me.  270;  10  Gray,  281;  36 
Mo.  433.  o  9  Heisk.  868. 
Ginnon  v.  New  York  etc.  R.   Co.,  3 

Robt.  25.     pp.  227,  228,  267. 
Gisbourne  v.  Hurst,  1  Balk.  249.    p. 

493. 
Glaholm  v.  Barker,  L.  R.  5  Eq.  598; 
8.  c.  12  Jur.  (N.  8.)  764 ;  35  L.  J.  (Ch.) 
657;  14  Week.  Rep.  1006;  14  L.  T. 
(N.  s.)  880;  11  Jur.  (N.  s.)  434;  34 
L.  J.  (Ch.)  533;  13  Week.  Rep.  671  ; 


XXX 


TABLE    OF    CASES    CITED. 


12  L.  T.   (N.  8.)  317;  34  Beav.  305; 

L.  R.  1  Ch.  228.     p.  544. 

c  51  Pa.  St.  322. 
Glasco  V.  New  York  etc.   R.  Co.,  36 

Barb.  557.     pp.  434,  520,  521,  522. 

c  37  N.  Y.  Supr.  Ct.  528,  532. 
Glassey  v.  Hestonville  etc.  R.  Co.,  57 

Pa.  St.  172.     p.  293. 
Gleason  v.  Bremen,   50   Me.   222.     p. 

552. 
Gleason  v.  Goodricli  Transp.   Co.,  32 

Wis.  85.     pp.  510,  513,  517,  529, 

c  33  Wis.  63. 
Glover  v.  London  etc.  R.  Co.,  L.  R.  3 

Q.  B.  25.     p.  516. 

c  17  Upper  Canada  C.  P.  615. 
Goddard  v.  Grand  Trunk  R.  Co.,  57 

Me.  202.     pp.  304,  317,  3G2,  364,  365, 

366,  369,  370,  575,  576,  oSl. 

C44  Iowa,  318;  53  Miss.  221;  3  So.   Car. 
597;  3  Cliflf.  428;  36  Wis.  464;  106  Mass.  189; 
62  Me.  88,  90;  3  Jones  &  Sp.  130;  38  Ind.  127; 
8  Busli,  152 ;  11  Nev.  :iG3.    ?  36  Wis.  676. 
Goetz  V.  Hannibal  etc.  R.  Co.,  50  Mo. 

472.     pp.  339,  376. 
Goff  V.  Great  Northern  R.  Co.,  30  L. 

J.   (Q.  B.)  148;  s.  c.  3  El.  &  El.  672. 

pp.  359,  373. 

c  42  L.  J.  (Q.  B.)  25,  26,  27 ;  L.  R.  8  Q.  B. 
38,  39,  40,  41;  3  Cliflf.  424;  L.  R.  2  Q.  B.  536, 
537;  46  N.  Y.  29;  Irish  Kep.  5  C.  L.  8,  10,  16, 
17,  18,  19,  24,  25;  47  N.  Y.  126;  12  Upper  Can- 
ada C.  P.  93.  «1  L.  R.  2  Q.  B.  538,  539. 
Goines   v.    McCandless,   4   Phila.   255. 

pp.  346,  377. 
Goldey  v.  Pennsylvania  R.  Co.,  6  Casey, 

248;  s.  c.  30  Pa.  St.  342.     p.  386. 

c  17  How.  368;  59  Pa.  St.  250;  47  Ind.  486; 
51  Pa.  St.  330,  331;  39  Iowa,  254;  55  Pa.  St.  59, 
60,  62. 
Gonzales  «.  New  York  etc.  R.  Co.,  38 

N.  Y.  440;  s.  c.  39  How  Pr.  408;  1 

Jones  &  Sp.  57;  6  Robt.  93,  297;  1 

Sweeny,  506 ;  50  How.  Pr.  126.     pp. 

269,  272. 

c66  Barb.  441;  14  Abb.  Pr.  (n.  s.)  30,  76; 
34  Iowa,  160;  54  N.  Y.  471;  29  Iowa,  38;  7 
Lans.  13;  42  X.  Y.  473;  3  Lans.  85;  2  N.  Y.  S. 
C.  (T.  &  C.)  646. 
Gordon  v.  Grand  Street  etc.  R.  Co.,  40 

Barb.  546.     pp.  43,  107. 
Gordon  v.  Manchester  etc.  R.  Co.,  52 

N.  H.  596.     pp.  65,  68. 


Gore  V.  Norwich  etc.  Transp.  Co.,  2 

Daly,  254.     p.  518. 

c  32  Wis.  92. 
Goshen  v.  Supervisors,  1  W.  Va.  308. 

p.  543. 
Goslin  V.  Corry,  7   Man.  &  G.  347.     p. 

554. 
Gould  V.  Hill,  2  Hill,  623.     p.  381. 
Govett   V.  Radnidge,  3  East,    62.     p. 

542. 
Graffam  v.  Boston  etc.  R.  Co.,  67  Me. 

234.     p.  522. 
Graham  v.  Davis,  4  Ohio  St.  362.     pp. 

387,  393. 
Graham  v.  Pacific  R.  Co.,  66  Mo.  536. 

pp.  45,  401,  574,  575,  577,  578. 
Graham  v.  Toronto  etc.  R.  Co.,  23  Up- 
per Canada  C.  P.  541.     p.  49. 
Grand  Rapids  etc.  R.  Co.  v.  Huntley> 

38  Mich.  537.     pp.208,  221. 
Grand  Rapids  etc.  R.  Co.  v.  Judson,  34 

Mich.  506.     p.  208. 
Grant  v.  Newton,  1  E.  D.  Smith,  95. 

pp.  510,  511,  537. 

c  30  N.  Y.  617;  1  Hilt.  502;  4  E.  D.  Smith, 
180,  182,  183;  2  Bosw.  602,  604. 
Grant  v.  Norway,  10  C.  B.  688;  s.  e.  2 

Eng.  Law  &  Eq.  337.     p.  176. 
Great  Northern  R.  Co.  v.  Eastern  Coun- 
ties R.  Co.,  9  Hare,  306;  s.  c.  7  Eng. 

Rail.  Cas.  643 ;  21  L.J.  (Ch.)  837;  12 

Eng.  Law  &  Eq.  224.     p.  418. 
Great  Northern  R.  Co.  •».  Harrison,  10 

Exch.  376;  s.  c.  2   Com.  Law  Rep. 

1136;  23  L.  J.  (Exch.)  308;   12  C.  B. 

576.     p.  44. 

c  ,34  N.  J.  L.  .516 ;  34  Upper  Canada  Q.  B. 
458,  462. 

Great  Northern  R.  Co.  v.  Shepherd,  8 

Exch.  30;  s.  c.  7  Eng.  Rail.  Cas.  310; 

21  L.  J.  (Exch.)  286.     pp.  611,  522, 

523. 

C  73  111.  353 ;  41  Mo.  507 ;  L.  R.  6  Q.  B.  619, 
621 ;  40  L.  J.  (Q.  B.)  303, 304 ;  36  Upper  Canada 
Q.  B.  355;  2  Bosw.  604;  6  Hun,  547;  10  C.  B. 
(N.  S.)  170,  172,  178;  98  Mass.  378;  1  Dakota, 
359. 
G-reat  Western  B.  Co.  v.  Blake,  7  Hurl. 

&  N.  987;  s.  c.  S  Jur.  (n.  s.)  1013;  31 

L.  J.    (Exch.)   346;    10   Week.   Rep. 

388  ;  7  L.  T.  (N.  s.)  94.     pp.  412,  413, 


TABLE    OF    CASES    CITED. 


XXXJ 


414,  415,  416,  417,  432.     (In  full,  p. 

403.) 

c  12  Wall.  85;  35  Upper  Canada  Q.  B.  550; 
L.  R.  3  Q.  B.  553,  554 ;  L.  R.  6  Q.  B.  272,  273, 
274;  40  L,.  J.  (Q.  B.)  94,  95;  L.  R.  5  O.  P.  441, 
442,443,  444;  L.  R.  8  Exch.  141,  143,  144,  145; 
42  L.  J.  (Exch.)  92,  94,  95,  96;  56  Me.  240. 

Great  Western  R.  Co.  v.  Braid,  1  Moo. 

P.  C.  C.  (N.  s.)  101 ;  s.  c.  9  Jur.  (n.  s.) 

339;  1  Week.  Rep.  444.     pp.  82,  207, 

211,219.    , 
Great  Western  R.  Co.  v.  Goodman,  12 

C.  B.  313;  s.  c.  16  Jur.  862;  21  L.  J. 

(C.  P.)  197;  11  Eng.  Law  &  Eq.  546. 

pp.  514,  530. 

C  10  C.  B.  (N.  S.)  469;  46  N.  H.  226,  229. 

Great  Western  R.  Co.  v.  Miller,  19  Mich. 

305.     pp.  340,  368,  376,  377. 

c  44  Iowa,  318. 
Great    Western   B.    Co.  v.  Pocock,   28 

Week.  Rep.  49;  s.  c.  10  Cent.  L.  J. 

84.     (In  full,  p.  63.) 

c  9  Hun,  672. 
Great  Western  R.  Co.  of  Canada  v. 

Fawcett,  1  Moo.  P.  C.  C.  (n.  s.)  101 ; 

s.  c.  9  Jur.   (N.   s.)  339;   11  Week. 

Rep.  444;  8  L.  T.  (n.  s.)  31.     p.  82. 
Green  v.  City  of  Bridgeton,  9  Cent.  L. 

J.  206.     pp.  348,  377. 
Green  v.  Milwaukee  etc.  R.   Co.,  38 

Iowa,  100;  s.  c.  41   Iowa,  410.    p. 

514. 
Greenland    v.   Chaplin,   5    Exch.   243. 

pp.  266,  285,  286. 

c  2  Sawyer,  29 ;  21  Upper  Canada  Q.  B.  106 ; 
18  Ohio  St.  410,  411;  3  Q.  B.  Div.  336;  7  Cent. 
L.  J.  14;  17  Alb.  L.  J.  507;  59  III.  352;  53  Ind. 
155;  14  Allen,  298;  101  Mass.  465;  75  111.  98; 
38  Ala.  86 ;  62  Me.  243.  ?  4  Am.  L.  Reg.  (N.  s.) 
18 ;  46  Pa.  St.  161. 
Grieve  v.  Ontario  etc.  Steamboat  Co., 

4  Upper  Canada  C.  P.  387.     p.  473. 

c  4  Upper  Canada  C.  P.  543. 
Griggsby  v.  Chappel,   6  Rich.  L.  446. 

p.  562. 

c  53  Me.  502. 
Grill  V.  General  Iron  Screw  Collier  Co., 

L.  R.  1  C.  P.  600.     pp.  398,  574. 
Grote  ■;;.  Chester  etc.  R.  Co.,  2  Exch. 

251 ;  s.  c.  5  Eng.  Rail.  Cas.  649.     pp. 

127,134,  135,  156,  159,221. 

c  L.  R.  4  Q.  B.  389,  393;  8  Best  &  S.  .385,  .386; 
L.  R.  2  Q.  B.  424,  425 ;  36  L.  J.  (Q.  B.)  187,  188; 


Irish  Rep.  13  C.  L.  547;  15  Gratt.  237;  L.  R.  6 
Q.  B.  195,  505,  508,  512,  515. 

Gunn  V.  Dickson,  10  Upper  Canada  Q. 
B. 461.     p. 545. 

H. 

Hackford  v.  New  York  etc.  R.  Co.,  6 

Lans.  381 ;  s.  c.  43  How.  Pr.  222.     p. 

553. 
Hadencamp  v.  Second  Avenue  R.  Co., 

1  Sweeny,  490.     p.  444. 
Hadley  v.  Cross,  34  Vt.  586.     p.  215. 

c  48  N.  H.  315. 
Hadsoll  V.  Stallebrass,  11  Ad.  &  E.  301. 

p. 547. 
Hagan  v.  Providence  etc.  R.  Co.,  3  R. 

1.88.     p.  575. 

c  57  Me.  248.    o  11  Nev.  362. 
Hale  V.  New  Jersey  Steam  Nav.  Co.,  15 

Conn.  539.     p.  386. 
Haley  v.  Chicago  etc.  R.  Co.,  21  Iowa, 

15.     pp.  271,  302,  340,  376,  377. 

c  38  Iowa,  296;  32  Iowa,  149;  29  Iowa,  58; 
36  Iowa,  40. 
Hall  V.  Connecticut  River  Steamboat 

Co.,  13  Conn.  319.     pp.  205,  236,  237, 

357,  558. 

c  44  Miss.  498;  3  Cliff.  422;  4  Iowa,  550;  21 
Conn.  254,  578;  48  N.  H.  315;  11  Gratt.  711;  2 
Story,  42. 
Hall  V.  De  Cuir,  95  U.  S.  485.     pp.  346, 

348,  349,  475. 
Hall  V.  Hollander,  4  Barn.  &  Cress.  660. 

p.  547. 

c  25  Me.  45;  15  Ga.  356;  2  Cush.  351;  117 
Ma.ss.  544;  19  C.  B.  (N.  S.)  236;  34  L.  J.  (C. 
P.)  296.    ?  21  Wend.  617. 
Hall  V.  Power,  12  Mete.  482.     p.  350. 

c  31  Ark.  51 ;  59  Pa.  St.  141 ;  15  N.  Y.  463. 
Halpin  v.  Third  Avenue  R.  Co.,  8  Jones 

&  Sp. 175.     pp.  444,  562. 
Hambleton  v.  Veere,  2  Saund.  169.     p. 

564. 
Hamilton  v.  New  York  etc.  R.  Co.,  51 

N.Y.  100.     pp.  70,  377. 

c  47  Iowa,  86;  10  Ch.  Leg.  N.  78;  6  Re- 
porter, 4;  48  Vt.  235. 
Hamilton  v.  Third  Avenue  R.  Co.,  53  N. 

Y.  25;  s.  c.  48  How.  Pr.  50;  3  Jones 

&Sp.  118.     pp.338,  571,575,  579. 

c  45  Iowa,  573;  4  Hun,  59,  219,  684;  1  Nev. 
311 ;  67  N.  Y.  56 ;  6  Thomp.  &  C.  498.  d  48  Vt. 
235. 


xxxu 


TABLE    OF    CASES    CITED. 


Hamlin  v.  Great  Northern    R.  Co.,  1 

Hurl.  &  N.  408;  s.  c.  2  Jur.  (n.  s.) 

1122;  26  L.  J.  (Excli.)  20.     pp.  546, 

568. 

Cl  C.  P.  Div.  302,  313,  323, 325 ;  42  Wis.  29 ;  9 
Ch.  Leg.  N.  316.    d  44  L.  J.  (Q.  B.)  51,  52,  53; 
L.  R.  10  Q.  B.  116,  120. 
Hammond  v.  North-Eastern  R.  Co.,  6 

So.  Car.  130.     pp.  45,  545. 
Hando  v.  London  etc.  R.  Co.,  Q.  B., 

May  6,  1867.     p.  147. 
Hanley  v.  Harlem  R.  Co.,  1  Edm.  Sel. 

Cas.  359.     pp.  26,  219. 
Hanna  (The),  36  L.  J.  (Adm.)  1;  s.  c. 

15  Week.  Rep.  263 ;  L.  R.  1  Adm.  283 ; 

15  L.  T.  (N.  S.)  334.     p.  463. 
Hannibal  etc.  R.  Co.  v.  Swift,  12  Wall. 

262 ;  s.  c.  11  Am.  L.  Reg.  (x.  s.)  126 ;  4 

Ch.  Leg.  N.  99.     pp.  28,  507,  513,  518, 

520,521. 

c  52  N.  Y.  433 ;  67  N.  Y.  212;  1  Dakota,  358. 
Hanson    v.  European    etc.  R.  Co.,  62 

Me.  84.     pp.  366,  576,  581. 

c  11  Nev.  364. 
Harlow  v.  Fitchburg  R.  Co.,  8  Gray, 

237.     pp.  536,  539. 
Harlow  v.  Humiston,  6  Cow.  191.    p. 

551. 

c  18  N.  Y.  251;  33  Barb.  416;  23  Wend.  447, 
452;  20  111.  490;  55  Barb.  246;  5  Duer,  25;  25 
Me.  47 ;  12  Pick.  177 ;  24  N.  J.  L.  269,  284 ;  2 
Hilt.  38;  6  Iowa,  452;  8  Nev.  114;  21  Barb.  79 
40  Barb.  382;  29  Me.  309;  4  Barb.  338;  7  Bosw. 
135. 
Harper  v.  Erie  R.  Co.,  32  N.  J.  L.  88 

pp.  226,  268. 
Harris  v.  Costar,  1  Car.  &  P.  636.     pp 

116,  120,  236,  238,  550. 

C  21  Md.  296 ;  2  C.  B.  891 ;  3  Dow.  &  L.  797 
10  Jur.  437;  15  L.  J.  (C.  P.)  185. 
Harris  v.  Great  Western  R.  Co.,  1  Q 

B.  Div.  515.     p.  519. 

C  2  C.  P.  Div.  420,  421. 

Harris  v.  Packwood,  3  Taun.  272.     pp. 

493,  497,  499. 
Harris  v.  Stevens,  31  Vt.  79.     pp.  106, 

350,  377. 

c  59  Pa.  St.  141 ;  31  Ark.  51,  .52. 
Harrold  v.  Great  Western  R.  Co.,  14 

L.  T.  (N.  s.)  440.     pp.  232,  268. 

C  L.  R.  4  Exch.  124. 
Hart  V.  Rensselaer  R.  Co.,  8  N.  Y.  37. 

pp.  429,  432. 


Hathaway  v.  Toledo  etc.  R.  Co.,  46  Ind. 

25.     p.  552. 

c  52  Iml.  Ill :  47  Ind.  456 ;  49  Ind.  97. 
Havens  v.  Hartford  etc.  R.  Co.,  28  Conn. 

69.     p.  545. 
Hawcroft  v.  Great  Northern  B.  Co.,  21 

L.  J.   (Q.  B.)   178;  s.  c.  16  Jur.  196; 

8Eng.Law&Eq.  862.     pp.29,  65,  69. 

(In  full,  p.  53.) 

c  27  Ind.  61.    ?  52  N.  H.  602. 
Hawkins  v.  Great  Western  R.  Co.,  17 

Mich.  57;  s.  c.  18  Mich.  427.  p.  386. 
Hawkins  v.  Hoffman,  6  Hill,  586.     pp. 

411,  511,  513,  521. 

c  57  X.  Y.  557;  15  Mich.  127;  30  N.  Y.  615; 
4  Bosw.  234 ;  35  Vt.  622 ;  3  Barb.  389 ;  9  Humph. 
624;  15  Mich.  143;  49  N.  Y.  78;  24  La.  An.  573; 
45  Barb.  223;  14  Allen,  459;  10  Cush.  418;  6 
Hun,  547;  98  Mass.  84;  2  Bosw.  64;  44  N.  H. 
330,331;  14  Pa.  St.  133;  6  Ind.  247;  10  How. 
Pr.  332;  2  Duer,  341;  13  111.  748,  749,  750;  1  E. 
D.  Smith,  99;  6  Cush.  72;  37  N.  Y.  Superior 
Ct.  5-28;  6  Hill,  590;  25  Ga.  64;  7  Am.  L.  Reg. 
(N.  S.)  538;  6  Blatchf.  69;  1  Hilt.  502.  ?  30  N. 
Y.  610. 
Hay  V.  Great  Western  R.  Co.,  37  Upper 

Canada  Q.  B.  456.     p.  266. 
Hay  V.  Le  Neve,  2  Shaw's  Sc.  App.  405. 

p.  285. 
Haycroft  v.  Lake   Shore  etc.  R.  Co., 

64  N.  Y.  636.     p.  662. 

c  7  Hun,  556. 
Hays  V.  Gallagher,  72  Pa.  St.  136.     p. 

552. 
Hazard  v.  Chicago  etc.  R.  Co.,  1  Biss. 

503.     pp.  228,  234,  267,  343. 

c  59  Ind.  323. 
Healey  v.  City  Passenger  R.  Co.,  28 

Ohio  St.  23.     pp.  370,  375,  443. 
Healy  v.  New  York,  3   Hun,  708.     p. 

271. 
^  Heard  v.  Mountain,  5  Petersd.  54.     p. 

236. 
Hegeman  v.  Western  B.  Corp.,  16  Barb. 

353;  13  N.  Y.  9.     pp.  191,  200,  209, 

215,  216,  221,  222,  356,  563.     (In  full, 

p.  160.) 

c  44  N.  Y.  481,  487 ;  3  Cliff.  421 ;  3  Park.  Cr. 
Cas.  237;  15  N.  Y.  411 ;  34  Barb.  274;  11  Allen, 
316;  25  N.  Y.  445;  34  N.  Y.  40S;  48  N.  H.  314, 
315 ;  24  N.  Y.  219 ;  18  N.  Y.  588 ;  47  N.  Y.  287 ; 
32  Barb.  659;  9  Rich.  L.  89;  51  N.  Y.  502;  63 
Barb.  266.    d  26  N.  Y.  103. 


TABLE    OF    CASES    CITED. 


xxxm 


Heim  v.  McCaughan,  32  Miss.  17.     pp. 

65,  66,  67,  544,  546,  551,  568,  574. 
Hellinan  v.  Holladay,  1  Woolw.  365. 

pp.  511,  512,  522,  523. 
Henderson  v.  Stevenson,  32  L.  T.  (n. 

S.)   709;  s.  c.  L.  R.  2  Sc.  App.  470. 

pp.  65,  437,  527.      ^i^^^ 

dl  C.  P.  Div.  626;  2  0.  P.  Div.  421,  429;  L. 
R.  1  Q.  B.  521,  522,  528,  530,  531,  532;  2  Q.  B. 
421,429. 

Hendricks  v.  Sixth  Avenue  R.  Co.,  12 

Jones  &  Sp.  8.     pp.  303,  304. 
Herman  v.  Drinkwater,  1  Me'.  27.    p. 

538. 

c  11  Humph.  421 ;  1  Hilt.  282. 
Hestonville  etc.  R.  Co.  v.  Connell,  6 

W.  N.  C.  514;  s.  c.  8  Cent.  L.  J.  306. 

p.  442. 
Hewett  V.  Swift,  3  Allen,  423.     pp.  362, 

370,  375. 
Hey  V.  Philadelphia,  81  Pa.  St.  44.     p. 

220. 
Hibbard  v.  New  York  etc.  R.  Co.,  15 

N.  Y.  455.     pp.  30,  43,  335,  336,  340, 

375. 

C  7  Hun,  144 ;  28  Barb.  279,  283 ;  36  Con  . 
291;  95  U.  S.  502;  28  Conn.  89;  46  N.  H.  223; 
57  Me.  235,  241 ;  31  N.  J.  L.  393;  37  Mich.  346; 
47  N.  Y.  126;  55  Ind.  372.    d  46  N.  Y.  29. 
Hickey  v.  Boston  etc.  R.  Co.,  14  Allen, 

429,     pp.  252,  260,  262,  551. 

cl6  Am    L.   Keg.  666;   121   Mass.  428;   6 
Cent.  L.  J.  47;  49  N.  Y.  53;  95  U.  S.  443.    d 
104  Mass.  141. 
Hicks  V.  Pacific  R.  Co.,  65  Mo.  34.    p. 

552. 

C  65  Mo.  23,  24,  26 ;  6  Cent.  L.  J.  230. 
Hickox  V.  Naugatuck  R.  Co.,  31  Conn. 

281.     pp.  511,  514. 

c  9  Hun,  672 ;  1  Dakota,  360. 
Hide  V.  Propi'ietors,  etc.,    1   Esp.  36. 

pp.  494,  495. 
Higgins  V.  Hannibal  etc.   R.   Co.,  36 

Mo.  418.     pp.  49,  263. 

c  42  Mo.  85 ;  8  Kan.  517. 
Higgins  V.  Harlem  etc.  R.  Co.,  2  Bosw. 

132.     p.  261 . 
Higgins  V.  Watervliet  Turnpike  Co., 

46  N.  Y.  23.     pp.  301,  317,  367,  374, 

375,  44'^.. 

c  70  N.  Y.  .Wl ;  36  Wis.  4f;4;  62  N.  Y.  185;  5 
Daly,  223,  224;  64  N.  T.  133;  56  N.  Y.  199;  3 


Jones  &  Sp.  128;  53  N.  Y.  28;  47  N.  Y.  125, 

277 ;  49  N.  Y.  314. 

Highland  Light  (The),    Chase's   Dec. 

151.     p.  480,  482. 
Hill  V.  New  Haven,  37  Vt.  501.     p.  553. 
Hill  V.  New  Orleans  etc.  R.  Co.,  11  La. 

An.  292.     pp.  267,  559,  575, 

c  57  Me.  253;  23  La.  An.  464. 

Hill  V.  Syracuse  etc.  R.  Co.,  63  N.  Y. 

101.     pp.  70,  71,  376. 

e  7  Hun,  144. 
Hilliard  v.  Goold,  34  N.  H.  240.     pp. 

329,  341,  376. 

c46  N.  H.  223;  33  Iowa,  567;  53  Me.  283; 
15  N.  Y.  Sup.  Ct.  580;  58  Me.  192;  43  111.  423;  7 
Iowa,  209. 
Hinckley  v.  Cape  Cod  R.  Co.,  120  Mass. 

257.     p.  551. 
Hiuton  V.  Dibbin,  2   Q.   B.   646.     pp. 

178,  389,  398. 
Hirschsohn  v.  Hamburgh  etc.  Packet 

Co.,  2  Jones  &Sp.  521.     pp.  472,  511, 

512,  521. 
Hobbs  V.  London  etc.  R.  Co.,  23  Week. 

Rep.  520;  s.  c.  44  L.  J.   (Q.  B.)  49; 

L.  R.  10  Q.  B.  Ill;  32  L.  T.  (n.  s.) 

352.     pp.  65,  67,  565,  566,  571. 

c  I.e.  P.  Div.  303;  42  Wis.  29;  9  Ch.  Leg.  N. 
316;  4  Col.  348. 
Hoffbauer  v.  D.  &  N,  R.  Co.,  20  Alb.  L. 

J.  474.     p.  340. 
Holbrook  v.  Utica  etc.  R.  Co.,  16  Barb. 

113;  s.  c.  12  N.  Y.  534.     pp.  166,  193, 

196,211,212,214,257,  553. 

c  3  Park  Cr.  Cas.  237 ;  6  Gray,  70;  34  Barb. 
269 ;  5  Bush,  7 ;  44  Ind.  204 ;  37  Mo.  260 ;  7  Bosw. 
135;  18  N.  Y.  252,  540,  544;  32  Barb.  659;  3  E. 
D.  Smith,  333;  35  Barb.  199;  29  Ind.  86;  16 
Barb.  356.  ?  39  JMd.  345. 
Holder  v.  Soulby,  8  C.  B.  (n.  s.)  254; 

s.  c.  29  L.  J.  (C.  P.)  246;  6  Jur.  (N. 

s.)  1031;  8  Week.  Rep.  438.  p.  531. 
Holdridge  v.  Utica  etc.  R.  Co.,  56  Barb. 

191.     p.  534. 
Holley  V.  Winooski  Turnpike  Co.,  1  Aik. 

74.     p.  220. 
Hollister  v.  Nowlen,  19  Wend.  234.    pp. 

4,  5,  26,  114,  122,  236,  526.     (In  full, 

p.  489.) 

c  15  Mich.  137, 140;  30  N.  Y.  615 ;  1  Daly,  153, 
199;  4  Bosw.  233;  10  N.  H.  486,  488;  11  Cush. 
99 ;  25  N.  Y.  461 ;  .34  N.  Y.  .551 ;  21  Wend,  .".ei ;  29 
Wend.  49;  19  Wend.  264,  257;  49  Barb.  155;  11 


XXXIV 


TABLE    OF    CASES    CITED. 


N.  T.  490 ;  14  Barb.  526 ;  46  N.  H.  228 ;  16  Barb. 
116;  98  Mass.  378;  1  E.  D.  Smith,  99;  9  Mete. 
!•? :  51  Barb.  78 ;  S  Hill,  20 ;  7  Hill,  563 ;  2  Daly, 
121 ;  10  Ch.  Leg.  N.  9, 10 ;  16  Pa.  St.  78 ;  45  Barb. 
219;  1  Abb.  Adm.  359;  66  111.  477;  29  Ga.  539; 
23  Vt.  205;  16  Vt.  61;  23  N.  H.  285;  4  Sandf. 
S.  C.  140,  144;  2  Ohio  St.  136. 
Holly  V.  Atlanta  Street  R.  Co.,  7  Re- 
porter, 460.  pp.  304,  3G4,  442. 
Holly  V.  Boston  Gas  Co.,  8  Gray,  123. 

p.  292. 
Holmes  v.  Doane,  3  Gray,  328.     p.  464. 
Holmes  v.  North-Eastern  R.  Co.,  L.  R. 

4  Exch.  254;  s.  c.  38  L.  J.  (Exch.) 

161 ;  17  Week.  Rep.  800 ;  20  L.  T.  (x. 

s.)  616   (affirmed  in  the  Exchequer 

Chamber,  L.  R.  6  Exch.  123;  40  L. 

J.  (Exch.)  121).     pp.  106,  226. 

c  62  Me.  562;  35  N.  J.  L.  25;  59  Mo.  36;  47 
Ind.  48;  25  Mich.  9;  1  Q.  B.  Div.  253,  254,  2.55; 
L.  R.  10  Q.  B.  301 ;  6  Keiiorter,  752. 
Holmes  v.  Waketield,  12  Allen,  580.    pp. 

370,  374,  375. 

c  64  N.  Y.  138;  104  Mass.  120,  121;  38  Ind. 
126;  5  N.  T.  S.  C.  (T.  &  C.)  480;  3  Hun,  334;  7 
Reporter,  753. 
Holyoke  v.  Grand  Trunk  R.  Co.,  48  N. 

H.  541.     pp.  551,  561,  564. 

c  11  Nev.  369. 
Hood  V.  New  York  etc.  R.  Co.,  22  Conn. 

1.     pp.433,  434. 

c  .56  Me.  240;  22  N.  Y.  304;  3  Daly,  396;  29 
Vt.  426;  23  Conn.  474,  475,485;  31  Cal.  52;  29 
Barb.  54;  24  N.  Y.  277;  33  Conn.  179;  45  Mo. 
241.  ?  22  N.  Y.  278 ;  24  111.  338,  339 ;  47  Mo.  590. 
Hopkins  v.  Atlantic  etc.  R.  Co.,  36  N. 

H. 1.     pp.  564,  565,  572,  573,  574. 

C  57  Me.  255,  257 ;  11  Nev.  364;  48  N.  H.  318, 
320,455;  19  Ohio  St.  172. 
Hopkins   v.  Westcott,    6   Blatchf.  54; 

s.  c.  7  Am.  L.  Reg.  (x.  s.)  533.     pp. 

513,  528. 

r  32  Wis.  99;  4  Cent.  L.  J.  38;  93  TJ.  S.  188; 
15  Alb.  L.  J.  192.     d  43  N.  Y.  208. 
Houfe  V.  Fulton,  29  Wis.  296.     p.  294. 
Houston  etc.   R.   Co.  v.   Gorbett,   49 

Texas,  473.     pp.  208,  227,  241. 
Houston    etc.    R.    Co.   v.   Moore,    49 

Texas,  31.     pp.  52,  343,  345. 
Howard   v.    Cobb,    19   Law   Reporter, 

611.     pp.  65,  66. 
Howe  V.  Newmarch,  12  Allen,  55.     p. 
363. 
c50  Mo.  121;  114  Mass.  519;  5  N.  Y.  S.  C. 


(T.  &  C.)  483 ;  3  Hun,  337 ;  53  Ind.  339 ;  57  Me. 
214;  104  Mass.  120;  38  Ind.  126;  3  CUff.  429; 
106  Mass.  188. 

Howe  V.  Plainfleld,  41  N.  H.  135.    p. 

557. 
Hoyt  V.  Hudson,  41  Wis.  105.     p.  552. 

c  43  Wis.  524,  675 ;  6  Cent.  L.  J.  429 ;  41  Wis. 
148;  7  Reporter,  83,  84. 
Howland  v.  The  Lavinia,  1  Pet.  Adm. 

123.     p.  467. 
Hubener  v.  New  Orleans  etc.  R.  Co.,  23 

La.  An.  492.     pp.  226,  267. 
Hudston.v.  Midland  R.  Co.,  L.  R.  4  Q. 

B.  366;   s.  c.  10  Best  &  S.  504.     p. 

512. 

c  L.  R.  6  Q.  B.  621,  623;  40  L.  J.  (Q.  B.)  304; 
6  Hun,  547. 
Huelsenkamp   v.  Citizens'  R.   Co.,   34 

Mo.  54;  s.  c.  37  Mo.  537.     pp.  245, 

444. 

c  40  Mo.  518 ;  20  Minn.  135.    ?  52  Me.  529. 
Hulbert  v.  New  York  etc.  R.  Co.,  40 

N.  Y.  145.     pp.  51,  107,  108,  269, 

c  10  Jones  &  Sp.  161 ;  28  Mich.  454. 
Hull  V.  BLansas  City,  54   Mo.  598.     p. 

220. 
Hull  V.  Richmond,  2  Woodb.  &  M.  337. 

p.  553. 
Hunt  V.  Pownal,  3  Vt.  411.     p.  220. 
Hunt  V.  Wynn,  6  Watts,  47.     p.  542. 
Hunter  v.  Stewart,  47  Me.  419.     p.  651. 
Huntsraau  v.  Great  Western  R.  Co.,  20 

Upper  Canada  Q.  B.  24.     p.  579. 

c  20  Upper  Canada  Q.  P..  30. 
Hurst  V.  Great  Western  R.  Co.,  19  C. 

B.  (N.  s.)  310;  s.  c.  34  L.  J.   (C.  P.) 

264;  11  Jur.  (N.  s.)  730;  13  Week. 

Rep.  950;  12  L.  T.  (n.  s.)  634.     pp. 

29,  67. 

c  24  Upper  Canada  Q.  B.  519;  52  N.  H.  605. 
Hurt  V.  Southern  R.  Co.,  40  Miss.  391. 

p.  43. 
Hutchings  v.  Western  etc.  R.  Co.,  2& 

Ga.  61.     pp.  510,  511,  521,  524. 
Hutchinson  v.  York  etc.  R.  Co.,  5  Exch 

343;  s.  c.  14  Jur.  837;  6  Eng.  Rail 

Cas.  580;  19  L.  J.   (Exch.)  296.     p 

48. 

c  6  Cush.  77;  4  Jur.  (v.  s.)  767,  769,  771,  773: 
2  Lans.  512;  7  La.  An.  .324,  .327;  18  C.  B.  803 
L.  R.  1  C.  P.  296;  43  Me.  270;  3  Ohio  St.  211 
24  Ala.  36 ;  5  N.  Y.  496 ;  53  N.  Y.  5.52 ;  14  Minn 
362 ;  23  Pa.  St.  386 ;  22  Ala.  309,  312 ;  43  Me.  270 ; 


TABLE    OF    CASES    CITED. 


XXXV 


11  Exch.  838;  5  Hun,  33;  6  Cal.  210;  6  La.  An. 
498;  21  111.  26;  9  Cush.  114;  51  Miss.  642;  10 
Mich.  199;  76  111.  397;  26  N.  Y.  565;  4  Jur.  (N. 
8.)  773;  10  Mich.  199;  1  Am.  L.  Keg.  719,  720;  5 
Best  &  S.  57 ;  33  L.  J.  (Q.  B.)  262,  264,  265,  266 ; 
10  Jur.  (N.  S.)  1076,  1077;  3  Exch.  Div  343;  5 
Exch.  357,  358 ;  14  Jur.  841 ;  19  L.  J.  (Exch.) 
302;  109  Mass.  449;  49  Miss.  283,  287;  28  Vt. 
63;  17  Ohio  St.  210;  6  Jones  L.  246;  46  Texas, 
638;  15  Ga.  358;  1  Hurl.  &  N.  250;  2  Jur.  (N. 
S.)  956;  25  L.  J.  (Exch  )  193. 
Hutton  V.  Osborn,  1  Selw.  N.  P.  (10th 

ed.)  399,  note  b;  p.  452. 
Hyde  v.  Jamaica,  27  Vt.  443.     p.  553. 

c  21  Mich.  113;  36  Vt.  587;  29  Conn.  209;  36 
N.  H.  298;  122  Mass.  351 ;  29  Iowa,  90;  42  Ind. 
343;  80  Vt.  740;  34  Conn.  13;  8  Minn.  166. 
Hynds  v.  Hays,  25  Ind.  31.    p.  558. 


I. 


Hlinois  etc.  R.  Co.  v.  Able,  59  El.  131 ; 

s.c.  4  Ch.  Leg.  N.  176.     pp.  227,  267. 

c  30  Ohio  St.  240. 
Hlinois  etc.  R.  Co.  v.  Adams,  42  lU. 

474.    p.  386. 
Hlinois  etc.  R.  Co.  v.  Copeland,  24  111. 

332.     pp.  421,  432,  511,  536,  537,  549, 

583. 

c  1  McArthur,  494;  21  Wis.  587;  42  HI.  95; 
84  111.  241.     7  51  Miss.  226. 

Illinois  etc.  R.  Co.  v.  Cunningham,  67 

HI.  316.    p.  580. 
Illinois  etc.  R.  Co.  v.  Demars,  44  HI. 

292.     p.  570. 
Hlinois  etc.  R.  Co.  v.  Finnegan,  21  HI. 

646.     p.  418. 

c41  Wis.  73;  65  m.  369. 

Illinois  etc.  R.  Co.  v.  Godfrey,  71  HI. 

500.     pp.  105,  106. 

c  72  111.  570;  83  111.  514,  515;  81  111.  596;  71 
111.  642 ;  2  Bradw.  313. 
Illinois  etc.  R.  Co.  v.  Hammer,  72  111. 

347.     p.  105. 

c  2  Bradw.  310. 
Illinois  etc.  R.  Co.  v.  Hetherington,  83 

111.  510.     p.  233. 

c  2  Bradw.  40,  310,  433. 
Hlinois  etc.  R.  Co.  v.  Johnson,  67  111. 

312.     pp.  343,  580. 

o  83  111.  280;  67111.316. 
Illinois  etc.  R.  Co.  v.  Kanouse,  39  111. 

272.     p.  417. 

c  10  Jones  &  Sp.  234 ;  63  N.  Y.  531 ;  40  111. 
145;  63  111.  546;  86  111.  445;  20  Kan.  518. 


Illinois  etc.  R.  Co.  v.  Nelson,  59  111. 

110.  pp.  343,  570. 
C  83  111.  280. 

Illinois  etc.  R.  Co.  v.  Phillips,  49  111. 

234.     p.  222. 
Illinois  etc.  R.  Co.  v.  Read,  37  HI.  484. 

p.  402. 

C  83  HI.  280;  34  N.  J.  L.  516;  85  111.  84;  2 
Cent.  L.  J.  367 ;  20  Minn.  129,  130. 
Illinois  etc.  R..Co.  v.  Slatton,  54  HI. 

133.     p.  267. 

c  78  111.  94;  3  Cent.  L.  J.  416. 
Illinois  etc.  R.  Co.  v.  Sutton,  42  HI. 

438.     pp.  342,  343,  557. 

c  59  Ind.  323 ;  63  111.  307 ;  67  111.  315 ;  38  Ind. 
125.     d  64  Mo.  475. 

Hlinois  etc.  R.  Co.  v.  Taylor,  24   HI. 
323.     p.  538. 
C  24  lU.  336. 

Illinois  etc.  R.  Co.  v.  Whittemore,  43 

111.  420.     pp.  336,  375. 
C  55  lU.  188. 

Imhoff  V.  Chicago  etc.  R.  Co.,  20  Wis. 

344.     pp.  226,  446. 
Ince  V.  East  Boston   Co.,  106   Mass. 

149.     p.  251. 

c  41  Iowa,  231 ;  95  U.  S.  442 ;  6  Cent.  L.  J.  46. 
Indiana  etc.  R.  Co.  v.  Hudelson,  13  Ind. 

325.     p.  105. 

c  17  Ind.  105;  15  Ind.  122. 
Indiana  etc.  R.  Co.  v.  Mundy,  21  Ind. 

48.     pp.  399,  402. 

c  47  Ind.  492;  34  N.  J.  L.  516;  22  Ind.  28,  29; 
20  Minn.  129 ;   2  Cent.  L.  J.  367.    o  47  Ind. 
482. 
Indianapolis  etc.  R.  Co.  v.  Allen,  31  Ind. 

394.     p.  389. 
Indianapolis  etc.  R.  Co.  v.  Anthony,  43 

Ind.  183.     pp.  369,  370,  549,  562. 

c  61  Ind.  248,  251;  36  Wis.  675 
Indianapolis  etc.  R.  Co.  v.  Beaver,  41 

Ind.  493.     pp.  45,  234,  399. 

c  47  Ind.  493,  495 ;  59  Ind.  322,  323. 

Indianapolis  etc.  R.  Co.  v.  Birney,  71 

111.  391.     pp.  65,  565,  570. 
Indianapolis  etc.  R.  Co.  v.  Hamilton,  44 

Ind.  76.     p.  549. 

c  47  Ind.  .371;  51  Ind.  248. 
Indianapolis  etc.  R.  Co.  v.  Horst,  93 

U.  S.  291;  s.  c.  15  Alb.  L.  J.  61;  16 

Am.  L.  Reg.  (n.  s.)  317.    pp.  104, 

234,  266. 
Indianapolis    etc.    R.    Co.    v.    Keoly's 


XXXVl 


TABLE  OF  CASES  CITED. 


Administrator,  23  Ind.  133.     pp.  549, 

552. 

c34  Iowa,  161;  24  Ind.  412;  35  Ind.  466;  42 
Ind.  342;  29  Gratt.  479;  50  Ind.  68,  84;  26  Ind. 
444;  38  N.  J.  L  139;  47  Ind.  478,  479. 
Indianapolis  etc.  R.  Co.  v.  Milligan,  50 

Ind.  392.     pp.  375,  551,  577,  585. 
Indianapolis  etc.  R.  Co.  v.  Rinard,  46 

Ind.  203.     pp.  28,  341,  343,  376. 

c  51  Ind.  574. 
Indianapolis  etc.  R.  Co.  v.  Rutherford, 

29  Ind.  82.     p.  257. 

c  5  Bush,  7 ;  39  Md.  350. 
Ingalls  v.  Bills,   9  Mete.  1.     pp.  131, 

139,  147,  158,  167,  170,  174,  191,  199, 

266,  355,  410.     (In  full,  p.  112.) 

c  24  Ga.  366 ;  8  Best  &  S.  380,  393, 403 ;  36  L.  J. 
(Q.  B.)  185,  191,  195 ;  L.  R.  2  Q.  B.  419,  430,  435, 
439;  15  Mich.  140;  38  Miss.  275;  3  Cliff.  420;  21 
Md.  283,  301;  119  Mass.  413:  15  N.  Y.  411;  44 
Ind.  201;  4  Iowa,  548;  97  Mass.  .368;  2  Mont. 
522,  526;  18  N.  Y.  .'i3S;  1  Duer,  241;  19  111.  517; 
41  N.  H.  51 ;  32  Barb.  659 ;  19  Wend.  269 ;  48  X. 
H.  315;  .34  Vt.  588;  13  N.  Y^  30;  15  lU.  471;  16 
Barb.  116,  357;  11  Allen,  505;  37  Mo.  546;  11 
Gratt.  715,  716.  «l  13  N.  Y.  25;  3  E.  D.  Smith, 
334.     ?  15  111.  468. 

Insurance  Co.  v.  Folsora,  18  Wall.  249. 

p.  509. 
Ionic  (The),  5  Blatchf.  538.     pp.  511, 

512. 
Irwin  V.  Sprigg,  6  Gill,  200.     p.  552. 

c  30  Ala.  327. 
Isaacs  V.  Third  Avenue  R.  Co.,  47  N. 

Y. 122.     pp.  336,  443. 

c  5  Daly,  222 ;  44  Iowa,  318.  d  6  Daly,  224 ; 
62  N.  Y'.  184,  185. 

Isabel  V.  Hannibal  etc.  R.  Co.,  60  Mo. 

475.     p.  293. 
Israel  v.  Clark,  4  Esp.  359 ;  s.  c.  1  Stark. 

423.     pp.  115,  117,  118,  130,  145, 155, 

199,  236,  237,  242. 

c  48  N.  H.  313 ;  8  Best  &  S.  379,  390,  400 ;  L. 
R.  2Q.  B.  419,  437;  36  L.  J.  (Q.  B.)  185,  190, 
194.    d  9  Mete.  7,  8.    ?  L.  R.  4  Q.  B.  388. 


J. 


Jackson  v.  Indianapolis  etc.  R.  Co.,  47 

Ind.  454.     p.  552. 

C. 58  Ind.  28. 
Jackson  v.  Second  Avenue  R.  Co.,  47 

N.  Y.  274.     pp.  374,  563,  576. 

C  70  N.  Y.  591 ;  13  Hun,  74;  62  N.  Y'.  185 ;  64 
X.Y.  138;  5  Daly,  223. 


Jackson  v.  Tollett,  2   Stark.   37.     pp. 

114,  200,  237,  240. 

c  11  Gratt.  711. 
Jacob  V.  United  States,  1  Brocken.  520. 

p.  482. 
Jacobus  V.  St.   Paul  etc.   R.   Co.,  20 

Minn.  125;  s.  c.   1   Cent.  L.  J.  371. 

pp.  44,  262,  399,  400. 

c  37  Mich.  115 ;  2  Cent.  L.  J.  367. 
James  D.  Parker  (The),  23  Int.  Rev. 

Rec.  66.     p.  482. 
James  v.  Patten,  6  N.  Y.  9.     p.  486. 
Jefferson  Ins.  Co.  v.  Cotheal,  7  Wend. 

78.     p.  559. 
Jeffersonville  etc.  R.  Co.  v.  Hendricks, 

Admr.,  26   Ind.  228.     pp.    199,  227, 

228,  267,  547,  552,  553. 

C44  Miss.  487;  51  Ind.  44;  47  Ind.  497;  44 
Ind.  201. 
Jeffersonville  etc.  R.  Co.  v.  Parmalee, 

51  Ind.  42.     p.  227. 
Jeffersonville  etc.  R.  Co.  v.  Riley,  39 

Ind.  569.     pp.  51,  110. 
Jeffersonville  etc.  R.  Co.  v.  Rogers,  38 

Ind.  116.     pp.  341,  342,  369,  549,  576. 

c  45  Iowa,  572 ;  51  Ind.  248 ;  36  Wis.  675 ;  15 
Minn.  56;  57  Me.  254;  46  Ind.  295.  d  51  Ind. 
572.     ?  36  Wis.  676. 

Jeffersonville  etc.  R.  Co.  v.  Swift,  26 

Ind.  459.     p.  267. 
Jeffersonville  etc.  R.  Co.  v.  Vancant,  40 

Ind. 233.     p. 547. 
Jencks  v.  Coleman,  2  Sumn.  221.     pjj. 

4,  7,  19,  26,  29,  314,  317,  351,  377,  453, 

464,465.     (InfuU,  p.  11.) 

c  15  Mich.  131;  4  Wall.  615;  67  X.  Y'.303;  5 
Ch.  Leg.  N.  535 ;  36  Wis.  459,  460,  463 ;  10  N.  H. 
4S6 ;  29  Vt.  163 ;  31  How.  Pr.  277 ;  7  Mete.  601 ; 
1  Am.  Rail.  Cas.  394;  24  N.  J.  L.  442;  H 
Blatchf.  235;  18  Int.  Rev.  Rec.  55;  15  111.  472; 
95  U.  S.  503. 

Jenkins  v.  Little  Miami  R.  Co.,  2  Dis- 
ney, 49.     p. 563. 

c  41  Ind.  254. 
Jennings  v.  Great  Northern  R.  Co.,  35 

L.  J.  (Q.  B.)  15;  s.  c.  12  Jur.  (n.  s.) 

331;  L.  R.  1  Q.  B.  7;  44  Week.  Rep. 

28;   13  L.  T.  (x.s.)  231.     p.  339. 

c  L.  R.  1  Q.  B.  15 ;  76  Pa.  St.  74. 
Jerome  v.  Smith,  48  Vt.  230.     pp.  338, 

339,  376,  556. 


TABLE    OF    CASES    CITED, 


XXXV  1 1 


John  V.  Bacon,  L.  R.  5  C.  P.  441.     pp. 

412,  413, 472, 473. 

c  L.  R.  8  Exch.  147;  42  L.  J.  (Exch.)  97;  25 
Mich.  9. 
Johnson  v.  Concord  R.  Co.,  46  N.  H. 

213.     pp.  65,  70,  71,  377. 

c  67  Me.  165 ;  17  Alb.  L.  J.  367 ;  6  Cent.  L.  J. 
382 ;  50  Ind.  144 ;  2  Cent.  L.  J.  830 ;  6  Reporter, 
490;  71  Pa.  St.  436,  437;  55  Iiid.  372. 
Johnson  v.  Hudson  River  R.  Co.,  20  N. 

Y.  65;  s.  c.  6  Duer,  633;  5  Duer,  21. 

pp. 551,  553. 
Johnson  v.  Midland  R.  Co.,  4  Exch. 

367.     p.  55. 
Johnson  v.  Stone,  11  Humph.  419.     p. 

511. 

c  15  Mich.  127;  30  N.  Y.  612;  41  Miss.  678; 
10  How.  Pr.  333;  1  Hilt.  282. 
Johnson  v.  Wells,  6  Nev.  222.     pp.  571, 

572. 

c  44  Iowa,  323 ;  11  Nev.  369,  370,  375,  376. 
Jolinson  V.  West  Chester  etc.  R.  Co.,  70 

Pa.  St.  357.     pp.  226,  268,  434, 

c  50  Ohio  St.  240. 
Joliet  V .  Verley,  35  111 .  58 .     p .  220 . 
Jones  V.  Boyce,  1  Stark.  493.     pp.  124, 

236,  237,  261,  266.     (In  full,  p.  246.) 

c  L.  R.  4  C.  P.  743;  44  L.  J.    (Q.  B.)  114; 
L.  R.  10  Q.  B.  274;  13  Pet.  193;  15  111.  471;  9 
Mete.  13;  14  Alien,  486. 
Jones  V.  Bright,  5  Bing.  533.    p.  130. 
Jones  V.  Norwich  etc.  Transp.  Co.,  50 

Barb. 193.     pp. 534,  535,  536. 
Jones  V.  Voorhees,  10  Ohio,  145;  s.  c. 

lOAm.L.  Reg.  145.    pp.  387,  512,  526. 

<•  30  N.  T.  612;  17  How.  369;  47  Ind.  486;  8 
Bush,  475 ;  10  How.  Pr.  332 ;  10  Ohio  St.  70 ;  13 
111.  750;  6  Cush.  72;  39  Iowa,  249;  2  Ohio  St. 
135. 

Jones  V.  Yeager,  2  Dill.  64.    p.  222. 
Jordan  v.  Pall  River  R.  Co.,  5  Cush. 

pp.  511,  512,  526. 

c  15  Mich.  127;  30  N.  Y.  612,  617,  621 ;  73  111. 
.3.57;  41  Miss.  678;  35  Vt.  612;  55  Me.  5.32;  98 
Mass.  84;  44  N.  H.  331;  6  Ind.  247;  106  Mass. 
148;  10  How.  Pr.  333;  10  Cush.  507;  9  Hun, 
671;  31  Conn.  283;  22  Iowa,  171;  29  Ind.  301; 
40  N.  H.  226 ;  98  Mass.  376 ;  27  Vt.  113. 
Julien  V.  Str.  Wade  Hampton,  27  La. 
An.  377.     p.  472. 

K. 

Kansas  etc.  R.  Co.  v.  Kessler,  18  Kan. 
523.     pp.  343,  344,  575, 


Kansas  etc.  R.  Co.  v.  Miller,  2  Col.  442. 

pp.  208,  214,  560,  561. 
Kansas  etc.  R.  Co.  v.  Pointer,  14  Kan. 

37;  s.  c.  9  Kan.  620.     p,  552. 

c  19  Kan.  493,  495. 
Kansas  Pacific  R.  Co.  v.  Montelle,  10 

Kan.  119.     pp.  435,  514. 
Kansas  Pacific  R.  Co.  v.  Salmon,  11 

Kan.  83.     p.  49. 

c  19  Kan.  272,  493 ;  6  Reporter,  200. 
Kay  V.  Pennsylvania  R.  Co.,  63  Pa.  St. 

269.     p.  293. 
Kearney  v.  King,  2  Barn.  &  Aid.  301. 

p.  457. 
Keating  v.  New  York  etc.  R.  Co.,  3 

Lans.    469;  s.  c.  49  N.  Y.  673.    p, 

226. 

c  28  Mich.  454. 
Keegan  v.  Western  R.  Corp.,  8  N.  Y, 

175.     p.  222. 
Keeley  v.  Boston  etc.  R.  Co.,  67  Me. 

163;  s.  c.  17  Alb.  L.  J.  366;  6  Cent. 

L.  J.  382.     pp.  71,  359,  376. 
Keene  v.  Lizardi,  5  La.  431.     pp.  361, 

362,  470. 

c  27  La.  Au.  5, 12;  3  Cliff.  427,  428. 
Keene  v.  The  Whistler,  2  Sawyer,  348. 

p.  485. 
Keith    V.  Piulvham,  43    Me.   501.     pp. 

199,  241,  259,  265. 

c  49  Me.  281 ;  20  Minn.  135. 

Keller  v.  New  York  etc.  R.  Co.,  24  How. 

Pr.  274.     pp.  226,  234,  270. 
Kelsey  v.  Glover,  15  Vt.  708.     p.  220. 
Kemp  V.  Coughtry,  11  Johns.  107,    p. 

492. 
Kennard  v.  Burton,   25   Me.  39.     pp. 

546,  552. 

c  13  111.  588 ;  19  Conn.  576 ;  18  N.  Y.  252 ;  28 
Mich.  45;  40  Me.  65;  3  Woodb.  &  M.  345;  32 
Me.  52;  12  Mete.  420;  30  Me.  179;  29  Me.  310. 
Kennedy  v.  North  Missouri  R.  Co.,  36 

Mo.  351.     p.  245. 
Kennedy  v.  Shea,  110  Mass.  147.    p. 

547. 
Kenrig  v.  Eggleston,  Aleyn,  93.    pp. 

497,  499. 
Kent  V.  Midland  R.  Co.,  L.  R.  10  Q.  B. 

1;  s.  C.31L.T.  (N.  s.)  430;  23  Week. 

Rep.  25 ;  44  L.  J.  (Q.  B.)  18.    pp.  432, 

437,  532,  534, 


XXXVlll 


TABLE    OF    CASES    CITED. 


Kentucky  etc.  R.  Co.  v.  Dills,  4  Bush, 
593.     pp.  267,  575. 
C  59  Ind.  320. 

Keokuk  Packet  Co.  v.  Henry,  50  El. 

264.     pp.  43,  50. 
Keokuk  Packet  Co.  v.  True,  88  111.  608. 

pp. 51, 472,  474. 
Kepperly  v.  Ramsden,  83  111.  354.     p. 

552. 
Ker  V.  Mountain,  1   Esp.  27.     pp.  68, 

237. 
Kerr  v.  Grand  Trunk  R.  Co.,  24  Upper 

Canada  C.  P. 209.     p. 515. 
Kessler  v.  New  York  etc.  R.  Co.,  1  Abb. 

N.  C.  549 ;  s.  c.  61  N.  Y.  538 ;  7  Lans. 

62.     pp.  434,  435, 515. 
Kimball  v.  Rutland  etc.  R.  Co.,  26  Vt. 

247.     p. 386. 
King  V.  Franklin,  1  Fost.  &  Fin.  360. 

pp.  365,  470. 
Kinney  v.  Central  R.  Co.,  32  N.  J.  L. 

407 ;  s.  G.  34  N.  J.  L.  513.    pp.  44,  386, 

400,  402. 

c  17  How.  367 ;  2  Cent.  L.  J.  367.     o  47  Ind. 
485 ;  20  Minn.  129. 

Kinney  v.  Neil,  1  McLean,  540.     p.  556. 
ICinsley  v.  Lake  Shore  etc.  R.  Co.,  125 

Mass.  54 ;  s.  c.  19  Alb.  L.  J.  113.     pp. 

369,  370,  517,  518,  520. 
Kisten  v.  Hildebrand,  9  B.  Mon.  72. 

p.  531. 
Klein   v.  Hamburg    Anaerican   Packet 

Co.,  3  Daly,  390.     p.  533. 
Klein  v.  Jewett,  2G  N.  J.  Eq.  474.     pp. 

233,  269,  564,  571,  572. 

Kline  v.  Central  Pacific  R.  Co.,  37  Cal. 

400;  s.  c.  39  Cal.  587.     p.  375. 

C  57  Me.  255 ;  40  Cal.  19 ;  5  N.  Y.  S.  C.  (T.  & 
C.)  480;  3  Hun,  334;  48  Miss.  117, 118,  123. 
Knapp  V.  Dagg,  18  How.  Pr.  165.     p. 

294. 
Knight  V.  Pontchartrain  R.  Co.,  23  La. 

An   462.     pp.  226,  267. 
Knight  V.  Portland  etc.  R.  Co.,  56  Me. 

234.  pp.  107,  108,  109,  269,  433. 
c  59  Me.  187;  .39  Ind.  586. 

Knowlton  v.  Erie  R.  Co.,  19  Ohio  St. 

260.     pp.  387,  399,  400. 

c  47  Ind.  486;  17  How.  369. 
Koons  V.  St.  Louis  etc.  R.  Co.,  65  Mo. 

592.     p.  293. 


L. 

Lackawanna  etc.  R.  Co.  v.  Chenewith, 

52  Pa.  St.  382-.     pp.  52,  332,  345,  399. 

c  59  Pa.  St.  250 ;  86  Pa.  St.  145 ;  58  Me.  195 ; 
51  N.  Y.  395 ;  20  Minn.  135. 
Lacon  v.  Page,  48  111.  499.     p.  220. 
Lafayette  etc.  R.  Co.  v.  Ehman,  30  Ind. 

83.     p.  558. 
Lafayette  etc.  R.  Co.  v.  Sims,  27  Ind. 

59.     pp.  260,  554. 

c  52  N.  H.  604. 

Laing  v.  Colder,  8  Pa.    St.  479.     pp. 
191,  192,  194,  211,  258,  386,  525,  526, 
550,  571. 
c  7  Ind.  458;  38  Ga.  432;  64  Pa.  St.  229,  230; 

17  How.  368 ;  47  Ind.  486 ;  57  Pa.  St.  344 ;  45  Pa. 
St.  215;  18  N.  Y.  411;  11  Cusli.  99;  30  Pa.  St. 
239 ;  76  Pa.  St.  513 ;  4  Iowa,  550 ;  6  Am.  L.  Reg. 
341;  51  111.  339;  6  Nev.  238,  239;  39  Iowa,  249; 
16  Pa.  St.  77;  55  Pa.  St.  59.  ?  18  N.  Y.  538, 
540,  641. 

Lake  Shore  etc.  R.  Co.  v.  Greenwood, 

79  Pa.  St.  373.     pp.  343,  344,  377. 
Lake  Shore  etc.,  R.  Co.  v.  Miller,  25 

Mich.  274.     p.  294. 
Lamb  v.  Palk,  9  Car.  &  P.  629.     p.  36. 

c  5  Robt.  538 ;  35  How.   Pr.  462 ;  14  How. 
487;  1  Am.  L.Reg.  402.    ?  7  Best  &  S.  139. 
Lambeth  v.  North  Carolina,  66  N.  C. 

494.     pp.  227,  267,  556. 

c  30  Ohio  St.  234. 
Landrigan  v.  The   State,  31   Ark.  50. 

p.  350. 
Lane  v.  Atlantic  Works,  107  Mass.  104. 

p.  551. 
Lane  v.  Cotton,  1  Salk.  143.     p.  493. 
Lane  v.  Crombie,    12    Pick.   177.      p. 

551. 

c29  Me.  310;  54  Mis.s.  395;  8  Nev.  114;  7 
Wis.  531;  6  Gill,  206;  6  Gray,  70;  4  Gray,  180; 
14  Allen,  431;  21  Pick.  147;  13  lU.  5S7;  19 
Conn.  576;  10  Mete.  365;  24  N.  J.  L.  270,  284; 

18  N.  Y.  252 ;  22  N.  H.  563 ;  7  Wis.  431 ;  17 
Mich.  119 ;  3  La.  An.  646 ;  20  111.  490 ;  2  Woodb. 
&  M.  ;345;  2  llilt.  39;  34  Cal.  164;  25  Me.  49;  16 
Pa.  St.  468;  20  Ohio,  446;  11  Mete.  444;  4  N.  Y. 
360 ;  2  Cush.  605 ;  12  Mete.  417 ;  42  Ind.  343 ;  7 
Gray,  97 ;  6  Iowa,  452,  453 ;  5  Duer,  24,  25.  27. 
?  20  N.  Y.  71. 

Latch    V.   Rumner    R.   Co.,   27    L.   J. 

(Exch.)  155.     pp.  214,  406,  414. 
Law  V.  Illinois  etc.  R.  Co.,  32  Iowa, 

534.     p.  343. 


TABLE    OF    CASES    CITED. 


XXXIX 


Lawrence  v.  Barker,  5  Wend.  305.     p. 

654. 
Lawrence  v.  New  York  etc.  R.  Co.,  36 

Conn.  63.     p.  386. 
Lawrenceburgh  etc.  R.  Co.  v.  Mont- 
gomery, 7   Ind.  474.     pp.  265,  331, 

345. 

c  36  Mo.  434;  58  Me.  194;  57  N.  T.  392. 
Le  Barron  v.  East  Boston  Ferry  Co.,  11 

Allen,  312.     pp.  208,  209,  213,  215. 

c  97  Mass.  368;  109  Mass.  406 ;  14  Allen,  467. 
Le  Caux  v.  Eden,  1  Doug.  572.  p.  460. 
Le  Conteur  v.  London  etc.  R.  Co.,  L. 

R.  1  Q.  B.  54;  s.  c.  12  Jur.  (n.  8.) 

266;  35  L.  J.  (Q.  B.)  40;  14  Week. 

Rep.  80;  13  L.  T.  (n.  s.)  325;  6  Best 

&  S.  961.     p.  516. 

c  3  C.  P.  Div.  226;  L.  R.  6  0.  P.  50,  51 ;  40  L. 
J.  (C.  P.)  12;  Irish  Rep.  10  C.  L.  77;  32  Wis. 
92. 

Lee  V.  Grand  Trunk  R.  Co.,  36  Upper 

Canada  Q.  B.  350.  pp.  511,  523,  524. 
Leeson  v.  Holt,  1  Stark.  186.    pp.  497, 

499. 
Leman  v.  Gordon,  8  Car.  &  P.  392.    p. 

467. 
Lesher  v.  Wabash  Nav.  Co.,  14  m.  85. 

p.  418. 
Lester  v.  Pittsford,  7  Vt.  158.    p.  553. 
Levering  v.  Union  Transp.  Co.,  42  Mo. 

88.     p.  3S6. 
Lewellen  (The),  4  Ben.  156.    p.  482. 
Lewis  V.  London  etc.  R.  Co.,  L.  R.  9 

Q.  B.  66;  s.  c.  43L.J.  (Q.  B.)8.     pp. 

230,  232,  268. 

c  44  L.  J.  (Q.  B.)  113;  L.  R.  10  Q.  B.  273;  36 
Upper  Canada  Q.  B.  369.    d  L.  R.  9  C.  P.  133, 
134;  43  L.J.  (C.  P.)  139. 
Liddy  v.  St.  Louis  R.  Co.,  40  Mo.  506. 

p.  245. 
Lillis  V.  St.  Louis  etc.  R.  Co.,  64  Mo. 

464.     pp.  69,  71,  340,  376, 377. 

a  66  Mo.  595. 

Limpus  V.  London   General  Omnibus 

Co.,   1  Hurl.  &  Colt.  526.     pp.  371, 

373. 
Lincoln  v.   Saratoga  etc.   R.   Co.,   23 

Wend.  425.     pp.  569,  572. 

c  1  Duer,  239 ;  63  Barb.  266 ;  48  N.  H.  545. 
Lindo  V.  Rodney,  1  Doug.  591.     p.  460. 
Lindsay  v.  Central  etc.  R.  Co.,  46  Ga. 

447.     p.  375. 


Linnehan  v.  Sampson,  8   Cent.  L.  J. 

442.     p.  20. 
Lion  (The),  L.  R.  2  Adm.  102;  s.  c.  38 

L.J.  (Adm.)51.     p.  463. 
Liscomb  v.  New  Jersey  Transp.  Co.,  6 

Lans.  75.     p.  107. 
Little   Miami  R.  Co.  v.  Wetmore,  19 

Ohio  St.  110.     pp.  370,  553. 

c  21  Ohio  St.  524 ;  44  Iowa,  318 ;  28  Ohio  St. 
29. 
Lloyd  17.  Hannibal  etc.  R.  Co.,  53  Mo. 

509.     pp.  227,  267,  553,  584. 

c  66  Mo.  599 ;  2  Cent.  L.  J.  541 ;  59  Mo.  37. 
Lockhart  v.  Lichtenthaler,  46  Pa.  St. 

161;  s.  c.  4  Am.  L.  Reg.  (N.  8.)  16; 

pp.  52,  283,  288. 

c  52  Pa.  St.  387;  11  Abb.  Pr.  (N.  S.)  420;  36 
N.  J.  L.  228,  229 ;  57  Pa.  St.  192.    ?  43  Wis.  527 ; 
6  Cent.  L.  J.  430. 
London  etc.  R.  Co.  v.  James,  L.  R.  8 

Ch.  241.     p.  475. 

c  2  App.  Cas.  808. 
London  etc.  R.  Co.  v.  Watson,  4  C.  P. 

Div.  118;  s.  c.  3  C.  P.  Div.  429;  27 

Week.  Rep.  614.     p.  337. 
Long  V.  Home,  1  Car.  &  P.  610.     pp. 

68,  236. 
Longmore  v.  Great  Western  B.  Co.,  19 

C.  B.   (N.  8.)   183.     pp.  90,  91,   92, 

101,107.     (In  full,  p.  81.) 

c  56  Me.  243, 245  ;  26  Iowa,  145 ;  12  Jur.  (N.  S.) 
273.  <1  L.  R  1  C.  P.  301,  303,  304,  305 ;  35  L.  J. 
(C.  P.)  135. 

Lord  V.  Midland  R.  Co.,  L.  R.  2  C.  P. 
345.     p.  68. 

Lords  Bailiffs-Jurats  of  Romney  Marsh 
V.  Trinity  House,  L.  R.  5  Exch.  204 
(affirmed,  L.  R.  7  Exch.  247)  ;  s.  c.  2 
Thonip.  on  Neg.  p.  1063.     p.  220. 

Loriug  V.  Aborn,  4  Cush.  608.  p.  336. 
c  22  Barb.  133. 

Losee  v.  Buchanan,  51  N.  Y.  476;  s.  c. 
61  Barb.  86;  1  Thomp.  on  Neg.  47. 
p.  222. 
c  68  Me.  165;  47  Ind.  271;  56  N.  Y.  126;  1 

N.  Y.  S.  C.  (T.  &  C.)  455;  6  Hun,  324;  38  N.  J. 

L.  ?>46;  41  Wis.  73;  57  N.  Y.  572;  53  N.  H.  448; 

13  Am.  L.  Reg.  (N.  8.)  371. 

Louisville  etc.  R.  Co.  v.  Case*s  Admin- 
istrator, 9  Bush,  728.     p.  290. 

Louisville  etc.  R.  Co.  v.  Mahan,  8  Bush, 
184.     pp.  534,  536. 
c  73  111.  513. 


xl 


TABLE    OF    CASES    CITED. 


Louisville  etc.  Canal  Co.  v.  Murphy,  9 

Bush,  552.     pp.  552,  562. 

c  5  Reporter,  720 ;  13  Bush,  642;  10  Bush, 
273;  9  Bush,  731;  12  Bush,  47. 
Louisville  etc.  R.  Co.  v.  Sickings,  5 

Bush,  1.     p.  257. 

c  7  Bush,  2:59;  39  Md.  350. 
Louisville   etc.   R.  Co.  v.  Yandell,  17 

B.  Mou.  580.     p.  49. 

c  7  Bush,  239;  17  B.  Mon.  598.    d  7  Bush, 
10. 
Lovett  V.  Hobbs,  2  Show.  128.     p.  26. 

c  12  Ga.  228. 
Lovett  V.  Salem  etc.  R.  Co.,  9  Allen, 

557.     pp.  228,  267,  374,  375,  443,  547. 

c55Ind.  50;  37  Cal.  405;  48  Miss.  117,  118, 
123;  28  Ohio  St.  30;  5  N.  Y.  S.  0.   (T.  &  C.) 
480;  3  Hun,  334;  64  N.  Y.  138;  56  Ind.  518;  52 
N.  H.  554. 
Lower   Macungie    Township  v.  Merk- 

hoffer,  71  P^i.  St.  276.     p.  220. 

c  81  Pa.  St.  50;  13  Hun,  87. 
Lucas  V.  Milwaukee  etc.   R.   Co.,  33 

Wis.  41.     pp.  52,  345. 
Lucas  V.  New  Bedford  etc.  R.  Co.,  6 

Gray,  64.     pp.  49,  50,  225,  227,  252, 

267,  334,  551. 

c  8  Allen,  230,  235,  448;  57  Barb.  651;  63  N. 
Y.  560;  59  Mo.  34;  1  Allen,  190;  8  Kan.  517;  3 
Allen,  22;  14  Allen,  4.33;  106  Mass.  275;  101 
Mass.  446 ;  58  Me.  199 ;  49  N.  Y.  52 ;  16  Gray, 
507;  17  Mich.  119,  120;  4  Allen,  289;  95  U.  S. 
443.  <1  104  Mass.  141. 
Lucas  V.  Taunton  etc.  R.  Co.,  6  Gi'ay, 

70.     p.  329. 

c  6  Cent.  L.  J.  47;  2  Cent.  L.  J.  540;  59  Mo. 
34. 
Luxford  V.  Large,  5  Car.  &  P.  421.    p. 

275. 
Lygo  V.  Newbold,  9  Exch.  302.     pp. 

329,  334. 

Cl9  Ohio  St.  411;  47  Ind.  48;  55  How.  Pr. 
173;  48  Pa.  St.  221;  4  Allen,  286;  25  Mich.  7; 
6  Gray,  70;  68  Me.  558;  34  Upper  Canada  Q. 
B.  459;  58  Me.  198;  57  N.  Y.  391 ;  59  Pa.  St.  142, 
143;  23  Upper  Canada  C.  P.  551. 
Lynam  v.  Union  R.  Co.,  114  Mass.  83. 

pp.  261,  446. 
Lynch  v.  Nurdin,  1   Q.  B.  29;  s.  c.  4 

Per.  &  Dav.  672 ;  5  Jur.  797 ;  2  Tliomp. 

onNeg.  1140.     p.  275. 

c  69  Pa.  St.  215;  6  Gray,  71;  17  Wall.  660; 
1  Head,  619,  (;20 ;  51  Me.  3.33 ;  Irish  Rep.  15  C. 
L.  345;  24  N.  J.  L.  832;  8  Minn.  168;  31  Miss. 
193, 197, 198;  47  Miss.  422;  52  Mo.  439,  440;  75 


III.  97;  .V2  N.  H.  554;  9  Wis.  212,  219;  6  N.  Y. 
410;  24  Vt.  496;  22  X.  J.  L.  189;  18  Cal.  356;  22 
Vt.  225,  22G ;  35  N.  Y.  211 ;  48  Pa.  St.  221,  232 ;  60 
Mo.  418,  420;  35  N.  H.  279;  15  Ind.  489;  31  Pa. 
St.  378 ;  47  Pa.  St.  304  ;  3  Cush.  305 ;  13  111.  588, 
589;  24  Md.  125;  9  O.  B.  420;  19  Conn.  511,  512, 
572,  573,  574;  5  El.  &  Bl.  856;  2  Jur.  (N.  S.)  118  ; 

25  L.  J.  (Q.  B.)  12-t ;  18  Ohio  St.  410 :  .36  Mo.  491 ; 
2  Cush.  543;  50  Mo.  468;  14  Jur.  336:  19  L.  J. 
(C.  P.)  200;  18  N.  Y.  252;  16  111.  202;  20  111.  494. 
496;  1  Sweeny,  543;  3  Q.  B.  Div.  331;  7  Cent. 
L.  J.  12;  17  Alb.  L.  J.  506;  1  Denio,  99;  26 
Conn.  600;  1  Hurl.  &  N.  780;  3  Jur.  (N.  s.)  396; 

26  L.  J.  (Exch.)  172;  47  Ind.  48;  17  Mich.  118; 
6  Daly,  11 ;  12  Cal.  ,5.59 ;  20  111.  496 ;  59  Pa.  St.  142, 
143;  53  Ala.  79;  14  Minn.  96;  65  Pa.  St.  276;  21 
Minn.  212,  213;  1  Keyes,  573;  33  How.  Pr.  200; 
2  Abb.  App.  Dec.  381;  27  Conn.  409;  9  Exch. 
.305,  306;  18  Ga.  686;  13  Ga.  88;  38  N.  Y.  458;  4 
Gray,  405,  407,  410;  55  How.  Pr.  172;  17  Iowa, 
463;  14  Allen,  298;  32  Me.  51,  ,53;  24  N.  J.  L. 
271;  22  Mo.  378;  63  N.  C.  349;  66  Barb.  .50;  15 
Abb.  Pr.  (N.  S.)  :}23;  27  Gratt.  476;  41  N.  Y. 
46;  9  Exch.  304;  18  N.  Y.  252;  23  Upper  Can- 
ada C.  P.  551 ;  37  Mo.  .550,  5.53.    ?  60  N.  Y.  334 ; 

27  Ind.  515,  516;  4  Allen,  2S6,  287;  11  Allen, 
519. 

L3'on  V.  Mells,  5  East,  428.     pp.  115, 
136,  143,  144,  157,  357. 

M. 

Mabley  v.  Kittleberger,  37  Mich.  360. 

p.  2S4. 
Macauley  v.  New  York  etc.  R.  Co.,  67 

N.  Y.  602.     p.  220. 
Macdougall  v.  Torrance,  4  Lower  Can- 
ada Jur.  132.     pp.  512,  538. 
Macklin  v.  New  Jersey  Steamboat  Co., 

9   Am.   L.  Reg.   (x.  s.)  237;    s.  c.  7 

Abb.  Pr.   (X.  s.)  229.     pp.  518,  529, 

530. 

C32   Wis.   91,  97.     o2   Ch.  Leg.  N.  397;  2 
Abb.Pr.   (N.  s.)  52. 
Macon  etc.  R.  Co.  v.  Johnson,  38  Ga. 

409.     pp.  260,  560. 

c52Ga.  468;  53  G  a.  16,  17. 
Macrow  v.  Great  Western  R.  Co.,  L.  R. 

6  Q.  B.  612;  s.  c.  40   L.  J.   (Q.  B.) 

300;  24  L.  T.  (n.  s.)  618;  19  Week. 

Rep.  873.     pp.  507,  510,  512. 

c  32  Wis.  98. 
Mad  River  etc.  R.  Co.  v.  Fulton,  20 

Ohio,  319.     p.  538. 

c  7  Rich.  L.  163;  1  Hilt.  282;  6  Ind.  247. 
Madan    v.   Sherrard,   10   Jones   &   Sp. 

353;  3  Abb.  N    C.  525.     p.  527. 


TABLE    OF    CASES    CITED. 


xli 


Maguire  v.  Middlesex  R.  Co.,  115  Mass. 

239.     pp.  261,  271,  444,  556. 
Maher  v.  Central  Park  R.  Co.,  7  Jones 

&  Sp.   52;    s.    c.    67  N.  Y.  52.     pp. 

445,  577. 
Maillard    v.  Lawrence,  16    How.  251. 

p.  486. 
Malecek  v.  Tower  Grove  R.  Co.,  57  Mo. 

17.     pp.  365,  368,  370,  559,  575,  581. 

c  66  Mo.  541. 
Mali  V.  Lord,  39  N.  Y.  381.     p.  371. 
Malone  v.  Boston  etc.  R.  Co.,  12  Gray, 

388.     pp.  524,  547. 

c  29  Ind.  363 ;  14  Allen,  457. 
Mallory  v.  Griffey,  85  Pa.  St.  275.    p. 

552. 
Malton  V.  Nesbit,  1  Car.  &  P.  70.    p. 

660. 

c  1  McLean,  545. 
Mangam   v.  Brooklyn  etc.  R.  Co.,  38 

N. Y.  455.     p.  562. 

c  47  N.  Y.  322,  324 ;  68  Me.  556 ;  17  Wall.  665 ; 
60  N.  Y.  333 ;  38  Wis.  629 ;  64  N.  Y.  18 ;  55  Ind. 
50;  5  Hun,  481;  66  Me.  381;  2  N.  Y.  S.  C.  (T.  & 
C.)  646 ;  9  Bush,  531 ;  63  X.  Y,  106, 107 ;  48  How. 
Pr.  81;  7  Jones  &  Sp.  351 ;  3  Abb.  App.  Dec. 
277;  56  Ind.  518;  66  Barb.  56;  15  Abb.  Pr. 
(N.  S.)  328;  45  Mo.  74;  2  .Jones  &  Sp.  485;  43 
How.  Pr.  410;  15  N.  Y.  408;  40  Barb.  207,  208. 
Manhattan    (The),  2    Ben.  88;  s.  c.  7 

Int.  Rev.  Rec.  28.     p.  479. 
Mann   v.  Birchard,  40  Vt.  326 ;  s.  c.  7 

Am  L.  Reg.  (n.  s.)  702.     p.  386. 

c  17  How.  367.    ?  47  Ind.  486. 
Maples  V.  New  York   etc.  R.  Co.,  38 

Conn.  557.     pp.  69,  336,  338,  375. 
Marfell  v.  South  Wales  R.  Co.,  8  C.  B. 

(X.  8.)  525;  s.  c.  7  Jur.  (n.  s.)  240; 

29  L.  J.  (C.  P.)  315;  8  Week.  Rep. 

765;  2  L.  T.  (n.  s.)  629.     p.  84. 
Markhara  v.  Brown,  8  N.  H.  523.     pp. 

4,  3G4. 
Maroney    v.  Old    Colony  R.  Co.,  106 

Ma.ss.  153.     p.  69. 

e  36  Wis.  675.     «1  48  Vt.  235. 
Marquette   v.  Chicago  etc.  E.  Co.,  33 

Iowa,  563.     pp.  301,  302,  375. 
Marshall  v.  Bazin,  7  N.  Y.  Leg.  Obs. 

3i2.     p.  467. 
Marshall  v.  Wellwood,  38  N.  J.  L.  339. 

p.  222. 
Mar.^hall  v.  York  etc.  R.  Co.,  11  C.  B. 


655;  16  Jur.  124;  21  L.  J.  (C.  P.)  34; 

7  Eng.  Law  &  Eq.  519.     p.  524. 

c  34  Upper  Canada  Q.  B.  462;  19  Ohio  St. 
655. 
Martin  v.  Great  Northern  R.  Co.,  16 

C.  B.  179 ;  s.  c.  3  Cora.  Law  Rep.  817 ; 

1  Jur.   (N.  s.)  613 ;  30   Eng.  Law  & 

Eq.  473.     pp.  74,  78,  99,  101,  107,  108, 

109,  110,  269. 

c  56  Me.  243 ;  26  Iowa,  143, 145 ;  18  N.  Y.  252. 
Martinez   v.  Gerber,  3    Scott's   N.  R. 

386;s.  c.  3  Man.  &  G.  88.     p.  547. 
Maryland  v.  Northern  etc.  R.  Co.,  18 

Md.  193.     p.  543. 
Masters  v.  Warren,  27  Conn.  293.    p. 

571. 

c  33  Conn.  55 ;  44  Iowa,  322 ;  6  Nev.  230, 233. 
Matteson  v.  New  York  etc.  R.  Co.,  62 

Barb.  364.     pp.  559,  564,  565. 

c  11  Nev.  369. 
Mattison  v.  New  York  etc.  R.  Co.,  57  N. 

Y.  552;  s.  c.  19  Alb.  L.  J.  359;  8  Re- 
porter, 440.     pp. 532,  534,  536. 
Maundv.  Monmouth  Canal  Co.,  4  Man. 

&G.  452.     p.  359. 
Maury  v.  Talmadge,  2   McLean,  157. 

pp.  199,  238,  240,  241,  242,  558,  560. 

c  48  N.  H.  316;  11  Gratt.  712;  17  111.  410;  1 
Abb.  Adm.  359. 

Maviug  V.  Todd,  1  Stark.  72.     p.  496. 
Maverick  v.  Eighth  Avenue  R.  Co.,  36 

N.Y.  378.     p.  433. 

c  5  Hun,  526;  63  Barb.  266. 
Max  V.  Roberts,  12  East,  89.     p.  542. 
May  V.  Davidson,  18  Minn.  523.    p.  223. 
May  V.  Princeton,  11  Mete.  442.    p.  551. 
Mayhew  v.  Boyce,  1   Stark.  423.     pp. 

237,  240. 
Mayo  V.  Boston  etc.  R.  Co.,  104  Mass. 

137.     pp. 270,  551. 

c  109  Mass.  521;  115  Mass.  199;  106  Mass. 
462;  120  Mass.  262,  266;  107  Mass.  108;  123 
Mass.  515;  6  Cent.  L.  J.  108;  5  Reporter,  238; 
114  Mass.  87,  88;  112  Mass.  47;  110  Mass.  339; 
6  Cent.  L.  J.  138;  5  Reporter,  238;  121  Mass. 
338;  8Cent.  L.  J.444. 
Mayor  v.  Humphreys,  1  Car.  &  P.  251. 

p.  555. 

c  17  111.552;  7  Hill,  539. 
McCahau  v.  Hirst,  7  Watts,  175.    p.  542. 
McCall  V.  Forsyth,  4  Watts  &  S.  17'J. 

pp.  544,  545.     (In  full,  p.  541.) 

c  17  111.  412. 


xlii 


TABLE    OF    CAS?:S    CITED. 


McCarthy  v.  Chicago  etc.  R.  Co.,  41 

Iowa,  432.     p.  376. 
McCarthy  v.  Dublin  etc.  R.  Co.,  Irish 

Rep.  3  C.  L.  511.     p.  337. 
McCartliy  v.  Guild,  12  Mete.  291.    p. 

547. 

c  11  Gray,  30;  117  Mass.  543. 
McCawley  v.  Furness  R.  Co.,  42  L.  J. 

(Q.  B.)  4;  s.c.  L.  R.  8  Q.  B.  57;  21 

Week.  Rep.  140 ;  27  L.  T.  (n.  S.)  485. 

pp.  400,  401,  402. 
McClary  v.  Sioux  City  etc.  R.  Co.,  3 

Neb.  44.     pp.  199,  214. 
McClenaghan  v.  Brock,  5  Rich.  L.  17. 

pp.  370,  563. 

c  9  Rich.  L.  93 ;  30  Ala.  611 ;  50  Mo.  108. 
McClure  v.  Philadelphia  etc.  R.  Co.,  34 

Md.  532.     pp.70,  71. 

c  51  Cal.  428 ;  5  Daly,  51 ;  61  Barb.  613. 
McCormick  v.  Hudson  River  R.  Co.,  4 

E.  D,  Smith,  181.     pp.  434,  435,  512. 

c  30  N.  Y.  617. 
McCormick  v.  Pennsylvania  etc.  R.  Co., 

49N.  Y.  303.     pp.28,  519,  538. 
McDonald  v.  Chicago  etc.  B.  Oo.,  26 

Iowa,  124;  s.  c.  29  Iowa,  170.     pp. 

104,  114,  269,  565,  572.     (In  full,  p. 

93.) 

c  28  Mich.  453;  48  Vt.  106;  10  Jones  &  Sp. 
161;  39  Iowa,  586. 
McDougall  V.  Allan,  6  Lower  Canada 

Jur.  233;  s.  c.  12  Lower  Canada  Rep. 

321.     pp.  486,  512,  530. 
McElroy   v.   Nashua   etc.  R.    Co^.,   4 

Cush.  400.     pp.   201,   220,   357,   412. 

(In  full,  p.  409.) 

c  56  Me.  243;  3  Cliff.  422;  21  Ind.  283,  288, 
297;  97  Mass.  363;  9  Cent.  L.  J.  132;  8  Allen, 
233 ;  48  N.  H.  315 ;  5  Hun,  526 ;  11  Allen,  505. 
McGill  V.  Rowaud,  3  Pa.  St.  451.     pp. 

512,  524,  539. 

c  41  Miss.  678 ;  14  Fla.  556 ;  14  Pa.  St.  133 ;  9 
Lower  Canada,  180;  13  111.  750;  6  Cush.  72;  18 
111.420;  11  Humph.  422. 
McGloin  V.  Henderson,  6  La.  715.     p. 

466. 
McGrath  v.  Hudson  River  R.  Co.,  32 

Barb.  144;  s.  c.  19  How.  Pr.  211.     p. 

563. 

c  3  Daly,  385;  32  Barb.  164;  35  N.  Y.  37;  29 
Md.  439;  2  Jones  &  Sip.  486;  43  How.  Pr.411; 
33  Barb.  509. 


McGuire  v.  The  Golden  Gate,  McAU. 

104.     p.  470. 
Mclntyre  v.  New  York  etc.  R.  Co.,  43 

Barb.  532  ;  s.  c.  37  N.  Y.  288.     p.  265. 

c  30  Ohio  St.  234,  461,  464;  67  N.  Y.  55;  33 
Iowa,  569;  63  Barb.  266;  49  N.  Y.  53,  55. 
McKeon  v.  Citizens'  R.  Co.,  42  Mo.  79. 

pp.  368,  442,  446,  575. 

c  57  Me.  252;  50  Mo.  140. 
McKinley  v.  Chicago  etc.  R.  Co.,  44 

Iowa,  314;  s.  c.  17  Am.  L.  Reg.  69. 

pp.  345,  369,  374,  572,  581. 

c  45  Iowa,  573.    d  47  Iowa,  88;  10  Ch.  Leg. 
N.  88. 

McKinney  v.  Neil,  1  McLean,  540.     pp. 

114,  199,211,266,411. 

c  38  Miss.  275;  4  Iowa,  548,  550;  2  Mont. 
.525,  526 ;  44  Ind.  204 ;  17  111.  410, 411,  552 ;  27  La. 
An.  552 ;  48  K.  H.  316 ;  16  Barb.  117 ;  15  III.  471 ; 
16  m.  567, 569, 570 ;  4  G.  Greene,  558, 560. 
McLeans.  Burbank,  11  Minn.  277.     pp. 

211,412,414. 
McMahon  v.  Davidson,  13  Minn.  357. 

p.  223. 
McManus  v.  Crickett,  1  East,  106;  s.  c. 

2  Thomp.  on  Neg.  805.     pp.  358,  363. 

c  22  N.  Y.  367 ;  2  Har.  &  G.  319 ;  3  Head,  473 ; 
12  Iowa,  .',49;  18  Mo.  368;  4  Mete.  55;  50  Mo. 
108;  20  Ohio,  441;  26  Miss.  4)0;  4  Man.  &  G. 
58;  12  Minn.  373;  6  Reporter,  404;  18  AJb.  L. 
J.  91;  48  Miss.  118,  125;  5  Cush.  594;  31  N.  J. 
L.  231 ;  4  So.  Car.  68 ;  64  N.  Y.  134 ;  7  Cush.  386 ; 
19  Wend.  345,  347;  43  N.  Y.  569;  12  Allen,  53; 
3  East,  602;  6  Hurl.  &  X.  364,  365;  13  111.  285; 
47  N.  Y.  127;  7  Yerg.  379;  24  Conn.  266;  46  N. 
H.  2  53;  46  .V.  Y.  27;  57  Me.  233;  38  Miss.  278; 
3  Cliff.  423.  ?  2  Mo.  App.  45;  36  Wis.  669;  30 
L.J.  (Exch.)191. 
McMicken  v.  Brown,  6  Mart.  (n.  s.)  86. 

p.  554. 
McPadden  v.  New  York  etc.  R.  Co.,  44 

N.Y.  478;  s.  c.  47  Barb.  247.    pp.199, 

220. 

c  66  N.  Y.  320 ;  58  X  Y.  139. 
McQuesten  v.  Sauford,  40  Me.  117.     p. 

513. 
McQuiliken  v.  Central  Pacific  R.  Co., 

50  Cal.  7.     p.  552. 
Meesel  v.  Lynn  etc.R.  Co.,  8  Allen,  234. 

pp. 261,  444. 

c  100  Mass.  212 ;  33  Iowa,  569. 
Meier  v.  Pennsylvania  R.  Co.,  64  Pa.  St. 

225.     pp.  199,  200,  211, 212, 215. 

c  2  Col.  457;  76  Pa.  St.  513. 


TABLE    or    CASES    CITED, 


xliii 


Memphis  etc.  R.  Co.  v.  Chastine,   54 

Miss.  503.     pp.  376,  556. 
Memphis  etc  R.  Co.  v.  Whitfield,   U 

Miss.  466.     pp.  66,  556,  562,  565,  571, 

573. 

C  30  Ohio  St.  464. 

Merchants'    Bank  v.  State    Bank,   10 

Wall.  605.     p.  252. 
Merrill  v.  Grinnell,  30  N.  Y.  594.     pp. 

611,  520,  521,  538. 

c  15  Mich.  142 ;  42  N.  Y.  328 ;  9  Hun,  671 ;  56 
Me.  72 ;  8  Am.  L.  Reg.  400. 
Merrill  v.  Hampden,  26  Me.  234.     p. 

552. 

c  65  Me.  552 ;  27  Vt.  465 ;  35  Me.  104 ;  35  N. 
H.  276;  37  Me.  252. 
Merrimack   (The),   1    Ben.   201.     pp. 

463,  471. 

c  3  Sawyer,  314. 
Merryweather  v.  Nlxan,  8  Term  Rep. 

186.     p.  542. 
MetcaLf  v.  Baker,  2  Jones  &  Sp.  10; 

s.  c.   11    Ablj.  Pr.    (N.   s.)   431.    p. 

294. 
Metropolitan  R.  Co.  v.  Jackson,  3  App. 

Cas.    193.      pp.   200,   206,  214,   225, 

264. 
Meyer  v.  Pacific  R.  Co.,  40  Mo.  153. 

p.  245. 
Meyer  v.   Second    Avenue    R.   Co.,  8 

Bosw.  305.     p.  367. 
Michigan  R.  Co.  v.  Heaton,  31  Ind.  397. 

p.  389. 
Michigan  etc.  R.  Co.  v.  Carrow,  73  111. 

348.     pp.  511,  512,  558. 
Michigan  etc.  R.  Co.   v.  Coleman,  26 

Mich.  440.     p.  208. 
Michigan  etc.  R.  Co.  v.  Dolan,  32  Mich. 

510.     p.  208. 
Michigan  etc.  R.  Co.  v.  Gougar,  55  111. 

503.     p.  558. 
Michigan  etc.  R.  Co.  v.  Lantz,  29  Ind. 

528.     pp.  552,  553. 

c  47  Ind.  45 ;  37  Ind.  547 ;  42  Ind.  341 ;  35  Ind. 
im.    ?48Cal.  426. 
Michigan  etc.  R.  Co.  v.  Meyres,  21  111. 

627.     pp.  513,  515. 

C  78  111.  618. 
Iilichigan  etc.  R.  Co.  v.  Oehm,  56  111, 

293.     pp.  511,  523,  537. 
Lliddleton  v.  Fowler,  1  Salk.  282.     p. 

521. 


Midland  R.  Co.  v.  Bromley,  17  C.  B. 

372;  s.  c.  2  Jur.  (N.  s.)  140;  26  L. 

J.  (C.  P.)  94.     p.  532. 

c  12  Am.  L.  Reg.  373 ;  31  Wis.  632. 
Milan  (The),    1   Lush.   386.     pp.   285, 

475. 
Milk  V.  Middlesex  etc.  R.  Co.,  99  Mass. 

167.     p.  444. 
Miller  v.  St.  Louis  R.  Co.,  5  Mo.  App. 

471 ;  S.C.6  Cent.  L.  J.  335.     pp.  212, 

259,  261,  446. 
Milliman  v.  New  York  etc.  R.  Co.,  66 

N.   Y.   642;    s.    c.   6    Thomp.   &   C. 

585;    3    Abb.   N.   C.    525.     pp.   227, 

271. 
Milwaukee  etc.  R.  Co.  v.  Arms,  3  Cent. 

L.  J.  220.     pp.  573,  574. 

C  18  Kan.  523. 

Milwaukee  etc.  R.   Co.  v.  Finney,  10 

Wis.  388.     p.  362,  364,  575. 

c  44  Iowa,  318 ;  57  Me.  215,  248 ;  42  Wis.  666, 
673,  674;  3  Cliff.  428;  36  Wis.  670,  671,  675,  676; 
20  Wall.  541;  106  Mass.  189;  2  Mont.  521. 
Milwaukee  etc.  R.  Co.  v.  Hunter,  11 

Wis.  160.     pp.  552,  553. 

c  18  Wis.  332 ;  34  Iowa,  161 ;  41  Wis.  108, 
109. 
Minor  v.  Chicago  etc.  R.  Co.,  19  Wis. 

40.     pp.  532,  534. 

c  73  111.  515. 
Minter  v.  Pacific  R.  Co.,  41  Mo.  503. 

pp.  514,  523. 

c  54  Mo.  389. 

Mississippi  etc.  R.  Co.  v.  Kennedy,  41 

Miss.  671.     pp.  510,  511,  512,  521,  537. 

d  2  Ch.  Leg.  N.  397;  2  Abb.  U.  S.  51;  50 
Miss.  319. 
Missouri  etc.  R.  Co.  v.  Weaver,  16  Kan. 

456.     pp.  577,  579. 

C  18  Kan.  523. 

Mitcliell  V.  Western  etc.  R.  Co.,  30  Ga. 

22.     p.  226. 
Mobile  etc.  R.  Co.  v.  Hopkins,  41  Ala. 

486.     pp.  524,  525,  526,  533. 

c20  Minn.  129;  2  Cent.  L.  J.  367;  41  Ala. 
647. 

Mobile    etc.   R.  Co.  v.   McArthur,  43 

Miss.  180.     pp.  66,  343,  564. 

c  64  Mo.  475;  50  Miss.  318. 
Montgomery  etc.  R.  Co.  v.  Boring,  51 

Ga.  582.     pp.  565,  577,  584. 
Moore    v.  American    Transp.  Co.,   24 

How.  1.     p.  484. 


xliv 


TABLE    OF    CASES    CITED. 


Moore  v.  Central  R.  Co.,  24  N.  J.  L. 

268.     p.  552. 

c  39  N.  J.  L.  192;  18  N.  Y.  252 ;  35  Ind.  466. 
Moore  v.  Evans,  14  Barb.  524.     pp.  386, 

525. 
Moore  v.  Evening  Star,  20  La.  An.  402. 

pp.  471,  513,  521. 

C  27  La.  An.  92. 

Moore  v.  Fitchburg  R.  Co.,  4  Gray,  465. 

pp.  317,  358,  362,  374. 

c  3  Cliff.  424,  429;  36  Wis.  463;  104  Mass. 
120,  121;  11  Nev.  364;  36  Wis.  675;  19  111.  374; 
38  Ind.  126;  57  Me.  215;  12  Allen,  581.    d  48 
Vt.  235. 
Moore  v.  Metropolitan  R.  Co.,  42  L.  J. 

(Q.  B.)  23;  s.  c.  L.  R.  8  Q.  B.  36.     p. 

373. 
Moore  v.  Shreveport,  3  La.  An.  645. 

p.  553. 
Morning  Star    (The),  4  Biss.  62.    p. 

481. 
Morel  V.  Mississippi  Ins.  Co.,  4  Bush, 

535.     p.  257. 

c  5  Bush,  7. 
Morgan  v.  Vale  of  Neath  R.  Co.,  5  Best 

&  S.  736;  s.  c.  L.  R.  1  Q.  B.  149;  35 

L.  J.  (Q.  B.)  23 ;  13  L.  T.  (n.  s.)  564 ; 

14  Week.  Rep.  144  (affirming  s.  c.  5 

Best  &  S.  570;  10  Jur.  (N.  s.)  1074; 

33  L.  J.  (Q.  B.)  260;  13  Week.  Rep. 

1031).     p.  146. 

CL.  R.  10  Q.  B.  128;  44  L.J.  (Q.  B.)61  62; 
86  Pa.  St.  440;  2  Exch.  Div.  .397;  46  L.  J.  528; 
45  L.  J.  3S9,  :i90 ;  28  lud.  376 ;  L.  R.  1  C.  P.  296 ; 
L.  R.  2  Exch.  32,  33;  4  Hurl.  &  Colt.  699;  36 
L.  J.  (Exch.)  10;  53  Pa.  St.  456,  459;  15  Rich. 
L.  210 ;  7  Ceut.  L.  J.  453 ;  18  Alb.  L.  J.  135, 136 ; 
53  111.  340;  49  Barb.  326;  28  Ind.  376;  3  Exch. 
Div.  344;  7  Best  &  S.  681;  3  C.  P.  Div.  494, 
498;  13  Allen,  444;  44  Md.  292;  62  Me.  465;  6 
Reporter,  126;  1  C.  P.  Div.  167,  168;  59  Pa.  St. 
247,  252. 
Morris  v.  Gleason,  1   Bradw.  510.    p. 

222. 
Morris  etc.  R.  Co.  v.  Ayres,  29  N.  J.  L. 

393.     p.  313. 
Morris  v.  Third  Avenue  R.  Co.,  1  Daly, 

202.     pp.  522,  536. 
Morrisseij  v.  Wiggins  Ferrij  Co.,  43  Mo. 

380.     p.  257.     (In  full,  p.  243.) 
Morrison  v.  Erie  R.  Co.,  56  N.  Y.  302. 

pp.  227,  228,  2(57. 

c  63  N.  Y.  560;  8  Jones  &  Sp.  182. 183 


Morse  v.  Auburn  etc.  R.  Co.,  10  Barb. 

621.     p.  511. 

c44  Miss.  496;  3  Jones  &  Sp.  129;  6  Nev. 
235,  237. 
Morse  v.  Connecticut  River  R.  Co.,  6 

Gray,  450.     pp.  539,  558. 

cm  Mass.  51;  56  Ga.  500. 
Morse  v.  Richmond,  41  Vt.  435.    p.  220. 
Morse  v.  Slue,  Sir  T.  Raym.  120;  s.  c. 

1  Vent.  190.     pp.  150,  499. 
Mosher  v.  Lawrence,  4  Denio,  421.     p. 

554. 
Mote  V.  Chicago  etc.  R.  Co.,  27  Iowa, 

22.     pp.  534,  535,  537. 
Mount  Vernon  v.  Dusouchett,   2  Ind. 

586.     p.  552. 

c  17  Ind  105;  23  Ind.  134;  7  Ind.  83;  42  Ind. 
343;  5  Ind.  290;  12  Ind  523;  2  Disney,  521;  7 
Iowa,  489;  10  Ind.  401. 

Mudgett  V.  Bay  State  Steamboat  Co.,  1 

Daly,  151.     p.  518. 

c  15  Mich.  138 ;  32  Wis.  92;  2  Daly,  355. 
Muldowney  v.  Illinois  etc.  R.  Co.,  39 

Iowa,  615;   s.  c.  36  Iowa,  462.     pp. 

552,  571. 

C43  Iowa,  667;  33  Iowa,  60:  40  Iowa,  343, 
344,  346,  402;  45  Iowa,  664;  38  Iowa,  280;  44 
Iowa,  320;  68  Me.  105. 
Mulhado  v.  Brooklyn  etc.   R.  Co.,  30 

N.  Y.  370.     pp.  227,  444,  445,  561. 

c  28  Mich.  455. 

Mulherrin  v.  Delaware  etc.  R.  Co.,  81 

Pa.  St.  366.     p.  233. 
Mulloy  V.  Backer,  5  East,  316;  s.  c.  1 

Smith,  447.     p.  467. 

c  2  Gray,  360 ;  Abb.  Adm.  51. 
Munster  v.    South-Eastern   R.   Co.,   4 

Jur.  (N.  s.)  738 ;  s.  c.  27  L.  J.  (C.  P.) 

308;    4  C.  B.   (n.  s.)   676.     pp.  513, 

529. 

c  L.  R.  6  C.  P.  51 ;  40  L.  J.  (C.  P.)  12. 
Murch  V.  Concord  etc.  R.  Co.,  29  N.  H. 

9.     pp.  25,  101, 109,  235,  412,  413, 417. 

e56  Me.  2J3;  .33  Wis.  63;  26  Iowa,  145;  15 
Gray,  24;  44  N.  H.  332;  40  Miss.  386;  47  N.  H. 
332 ;  46  N.  H.  231.    d  33  Wis.  56. 
Murphy  v.  Commissioners   of  Emigra- 

tior,  28  Y.  N.  134.     pp.  28,  520. 

c  3  Daly,  397,  398. 
Murphy  v.  Deane,  101  Mass.  455.     p. 

551. 

e  105  Mass.  78;  120  Mass.  262;  74  X.  C.  658, 
42  Ind.  343;  68  Me.  558. 


TABLE    OF    CASES    CITED. 


xlv 


Murphy  v.  Chicago  etc.  R.  Co.,  45  Iowa, 
661 ;  s.  c.  o»  Iowa,  539.     p.  552. 
c42  Iowa,  -W6. 

Murphy  v.  New  York  etc.  R.  Co.,  66 

Barb. 125.     pp.  557,  560,  561. 
Murphy  v.  Staton,  3  Munf .  239.    p.  498. 
Murphy  v.  Union  R.  Co.,  118  Mass.  228. 

pp.  301,  302,  ,303,  375,  443. 

c  28  Ohio  St.  :•" 
Muschamp  v.  Lancaster  etc.  R.  Co.,  8 

Mee.  &  W.  421.     pp.  55,  428. 
Mytton  V.  Midland  R.  Co.,  4  Hurl.  & 

N.   615;  s.  c.  28  L.  J.    (Exch.)  385. 

pp.  432,  435. 

c  35  Upper  Canada  Q.  B.  .558 ;  5  Hurl.  &  N. 
277;  29  L.  J.  (Exch.)  169;  34  Upper  Canada 
Q.  B.  234;  18  Upper  Canada  C.  P.  530. 

N. 

Najac  V.  Boston  etc.  R.  Co.,  7  Allen, 

829.     pp.  432,  514,  529. 

c  12  Wall.  85;  109  Mass.  405;  14  Allen,  436; 
11  Allen,  297. 
Nashville  etc.  R.  Co.  v.  Carroll,  6  Heisk. 

347.     p. 417. 
Nashville    etc.   R.   Co.   v.   Messino,    1 

Sneed,  220.     pp.  26,  27,  29,  202. 
Nashville  etc.  R.  Co.  v.  Sprayberry,  9 

Heisk.  852;  s.  c.  1  Cent.  L.  J.  541. 

pp.  432,  433. 
National  Express  Co.  v.  Drew,  2  Macq. 

H.  L.  Cas.  103;  s.  c.  33  Eng.  Law  & 

Eq.  1 ;  1  Pat.  Sc.  App.  482.     p.  359. 
Nebraska  City  v.  Campbell,  2  Black,  590. 

p.  551. 

c  32  Iowa,  328;  122  Mass.  370,  380;  58  N.  Y. 
395;  102  Mass.  500;  5  Neb.  452;  26  Iowa,  268; 
2  Col.  160;  11  Allen,  79;  91  U.  S.  551 ;  63  Barb. 
266. 

Nellis  V.  New  York  etc.  R.  Co.,  30  N. 

Y.  505.     pp.  341,  342,  343. 

c  15  N.  Y.  Supreme  Ct.  581. 
Nelson  v.  Chicago  etc.  R.  Co.,  38  Iowa, 

564.     p.  552. 

C  27  Vt.  379;  28  Vt.  304,  305. 

Nelson  v.  Long  Island  R.  Co.,  7  Hun, 

140.     pp.  30,  43,  71,  340,  376. 
Nelson  v.  Vermont  etc.  R.  Co.,  26  Vt. 

717.     p.  418. 
Nevins  v.  Bay  State  Steamboat  Co.,  4 

Bosw.  225.     pp.   472,  512,   522,  527, 

534. 

C  46  N.  H.  219. 


Newberry  v.  Lee,  3  Hill,  523.     p.  554. 
New  Jersey  etc.  R.  Co.  v.  Kenuard,  21 

Pa.  St.  203.     pp.  200,  258. 

c  51  111.  339 ;  48  N.  H.  315 ;  63  Pa.  St.  17.  cl 
64  Pa.  St.  229.  ?  39  Md  344;  29  Ind.86.  o  56 
Pa.  St.  296. 

New  Jersey  Express  Co.  v.  Nichols,  32 
N.  J.  L.  166 ;  s.  c.  33  N.  J.  L.  434.     p. 
552. 
c  39  N.  J.  L.  192 ;  38  N.  J.  L.  529 ;  33  Wis.  75 ; 

33  N.  J.  L.  439. 

New  Jersey  Steam  Nav.  Co.  v.  Mer- 
chants' Bank,  6  How.  344.     pp.  381, 

383,  391,  480. 
New  Orleans  etc.  R.  Co.  v.  Allbritton, 

38  Miss.  242.     pp.  212,  556,  559,  572, 

575. 

e  44  Miss.  490. 
New  Orleans  etc.  R.  Co.  v.  Bailey,  40 

Miss.  395.     pp.  374,  417. 
New  Orleans  etc.  R.  Co.  v.  Burke,  53 

Miss.   201.     pp.  301,    303,   304,    305, 

364. 
New  Orleans  etc.  R.  Co.  v.  Hurst,  36 

Miss.  660.     pp.  65,  66,  369,  544,  545, 

546,  571,  574,  577,  581. 
New  Orleans  etc.  R.  Co.  v.  Moore,  40 

Miss.  39.     pp.511,  536,  537. 
New  Orleans  etc.  R.  Co.  v.  Statham,  42 

Miss.  607.     pp.  66,  226,  227,  270,  271, 

574,  577,  582. 

C  41  Miss.  490,  491,  493 ;  59  Ind.  320 ;  4  Col. 
348. 

New  Orleans  Mutual  Ins.  Co.  v.  New 

Orleans  etc.  R.  Co.,  20  La.  An.  302. 

p.  389. 
New  Orleans  v.  The  Windermere,  12 

La.  An.  84.     p.  474. 
ISfeio  York  etc.  B.  Co.  v.  Fraloff,  9  Cent. 

L.  J.  432 ;  s.  c.  8  Reporter,  801 ;  20 

Alb.  L.  J.  409.     pp.  486,  510,  528,  530. 

(In  full,  p.  502.) 
Newman  v.  Walters,  3  Bos.  &  Pul.  612. 

p. 471. 

d  1  Lush.  .325. 
Nicholls  V.  Great  Southern  R.  Co.,  Irish 

Rep.  7  C.  L.  40;  s.  c.  21  Week.  Rep. 

387.     pp.  229,  231,  232,  233,  268. 
Nichols  V.  Middlesex  R.  Co.,  106  Mass. 

403.     p.  444. 
Nichols  V.  Sixth  Avenue  R.  Co.,  38  N. 

Y.  131.     pp.  268,  444,  563. 


xlvi 


TABLE    OF    CASES    CITED. 


Nicholson  v.  Erie  K,  Co.,  41  N.  Y.  525.- 

p.  225. 
Nicholson  v.  Lancashire  etc.  B.  Co.,  3 

Hurl.   &  Colt.   534;   s.   c.  34   L.   J. 

(Exch.)  84;    12  L.   T.   (n.   s.)  391. 

pp.  108,  109,  269.     (In  full,  p.  85.) 

c  56  Me.  243. 
Nicholson  v.  Willan,  5  East,  507.    pp. 

495,  497,  499. 
Nieto  V.  Clark,  1  Cliff.  145.    pp.  314, 

317,  361,  365,  470. 

c3  ClifF.  427;  106  Mass.  1«9;  36  Wis.  460, 
463,  672,  675 ;  57  Me.  217. 
Nimrod   (The),  7  Notes  of  Cas.  559. 

p.  361. 
Nolan  V.  New  York  etc.  R.  Co.,  9  Jones 

&  Sp.  541 ;  2  Abb.  N.  C.  538.     pp.  69, 

71,  376. 
Nolan  V.  Ohio  etc.  R.  Co.,  39  Mo.  114. 

p.  539. 
Nolton  V.  Western  B.  Corp.,  15  N.  Y. 

444.     pp.  45,  545.     (In  full,  p.  37.) 

c  22  N.  Y.  307 ;  66  N.  Y.  319 ;  51  Pa.  St.  326 ; 
47  Ind.  481 ;  37  Mo.  260 ;  57  Barb.  652 ;  19  Ohio 
St.  13;  58  N.  Y.  134;  24  N.  Y.  188, 193 ;  20  Minn. 
128;  37  Mich.  113,  114;  28  N.  J.  L.  190. 
Nordemeyer  v.  Loescher,  1  Hilt.  499. 

p.  524. 
North  Pennsylvania  R.  Co.  v.  HeUe- 

man,  49  Pa.  St.  60;  s.  c.  1  Thomp. 

onNeg.  401.     p.  233. 

C  33  Ind.  359;  34  Iowa,  161;  63  Pa.  St.  179; 
17  Mich.  118,  120,  121 ;  21  Minn.  297 ;  35  N.  Y. 
44;  49  Cal.  258;  64  Me.  490;  42  N.  Y.  473;  25 
Mich.  291;  73  Pa.  St.  510;  66  Pa.  St.  33;  4  Or. 
55 ;  67  Pa.  St.  315. 
Northern  R.  Co.  v.  Page,  22  Barb.  130. 

pp.  336,  375. 

c  28  Barb.  280;  24  Barb.  517;  4  Hun,  219;  6 
Thomp.  &  C.  497,  498;  46  N.  H.  219. 

Northrup  V.  Railway  Passengers'  Assur. 

Co.,  43  N.  Y.  516.     p.  61. 
North-Western  R.  Co.  v.  Hack,  66  111. 

238.     pp.  370,  375. 
Norton  v.  Ittner,  56  III.  551.     p.  563. 

c  58  Mo.  393. 
Norwich  Co.  v.  Wright,  12  Wall.  104. 

p. 487. 
Noyes  v.  Smith,  28  Vt.  59.     p.  222. 

c  49  Texas,  189 ;  2  Lans.  512  ;  43  Me.  271 ;  68 
111.  552;  49  Barb.  327;  14  Minn.  363;  38  Pa.  St. 
Ill;  5  Hun,  33;  46  Mo.  174;  13  AUen,  442;  47 
Mo.  587;  50  Miss.  191;  10  Ind.  557;  62  Me.  467; 


59  Mo.  504;  22  111.  643;  46  Texas,  539;  43  Me. 
270;  5  Hun,  494;  8  Hun,  257;  47  Miss.  414,  416; 
48  Me.  120, 122;  32  Vt.  478;  49  N.  Y.  531 ;  42  Ala. 
714,  718. 

o. 

CBrien  v.  Boston  etc.  B.  Co.,  15  Gray, 

20.     pp.  30,   43,  339,  340,  369,   376, 

(In  full,  p.  22.) 

c  104  Mass.  121 ;  6  Reporter,  490 ;  47  Iowa, 
89;  10  Ch.  Leg.  N.  78;  38  Ind.  126. 
O'Donnell  v.  Allegheny  etc.  R.  Co.,  59 

Pa.  St.  239 ;  s.  c.  50  Pa.  St.  490 ;  8  Am. 

L.  Reg.  (N.  8.)  757;  6  Cent.  L.  J. 

401.     pp.  49,  262,  332,  345. 

c  86  Pa.  St.  144;  53  Pa.  St.  457;  49  Pa.  St. 
194 ;  68  111.  552,  553 ;  50  Miss.  191 ;  82  Pa.  St. 
124 ;  46  Texas,  539 ;  58  Me.  195.  d  64  Mo.  475. 
O'Flaherty  v.  Union  R.  Co.,  45  Mo.  70. 

p.  293. 
O'Hagan  v.  Dillon,  10  Jones  &  Sp.  456. 

p.  271. 
Ohio  etc  R.  Co.  v.  Applewhite,  52  Ind. 

540.     p.  66. 

c  57  Ind.  579;  6  Cent.  L.  J.  390;  55  Ind.  372; 

60  Ind.  15. 

Ohio  etc.  R.  Co.  v.  Dickerson,  59  Ind. 

317.     pp.  234,  571,  572. 
Ohio  etc.  R.  Co.  v.  Dunbar,  20  111.  623. 

p.  418. 
Ohio  etc.  R.  Co.  v.  Hatton,  60  Ind.  12; 

s.  c.  6  Cent.  L.  J.  389.     pp.  67,  68. 

C  60  Ind.  536. 

Ohio  etc.  R.  Co.  v.  Muhling,  30  HI.  9. 

pp.  49,  234,  334,  340,  376. 

c  41  Ala.  502;  36  Mo.  434 ;  58  Me.  197.  d  81 
111.  249,  250. 

Ohio  etc.  R.  Co.  v.  Schiebe,  44  111.  460. 

p.  267. 
Ohio  etc.  R.  Co.  v.  Selb}^  47  Ind.  471. 

pp.  45,  234,  401,  550,  551. 

c  37  Mich.  115. 
Ohio  etc.  R.  Co.  v.  Stratton,  78  HI.  88; 

s.  c.  3  Cent.  L.  J.  415.  pp.  267,  292. 
Oil  Creek  etc.  R.  Co.  v.  Clark,  72  Pa. 

St.  231.     p.  70. 

«  43  Barb.  537;  1  Biss.  415. 
Oliver  v.  New  York  etc.  R.  Co.,  1  Edm. 

Sel.  Cas.  589.    pp.  201,  208. 
Orange  County  Bank  v.  Brown,  9  Wend. 

85;  s.  c.  3  Wend.  158.     pp.  491,  498, 

511,  520,  521. 

c  15  Mich.  127,  131,  142;  30  N.  Y.  611,  616, 


TABLE    or    CASES    CITED. 


xlvii 


617, 621 ;  4  Bosw.  233, 238 ;  25  Wend.  460 ;  69  111. 
67;  9  Humph.  624;  Newb.  Adm.  496;  42  Wis. 
28 ;  9  Ch.  Leg.  N.  316 ;  1  Smed.  &  M.  303 ;  23  Vt. 
216;  3  Barb.  389,  390;  8  Bush,  474;  14  Pa.  St. 
132 ;  2  Bosw.  604 ;  44  N.  II.  230,  231 ;  52  N.  Y, 
433;  9  Lower  Canada  Rep.  78;  11  N.  Y.  492. 
493;  12  Ga.  225;  42  K.  Y.  329;  19  Wend.  236, 
245,  258,  265,  270,  271,  637,  540,  541;  6  Hill,  5S9; 
13  111.  748,  749 ;  42  Wis.  28 ;  44  N.  H.  330,  331 ; 
98  Mass.  378;  29Ind.  361;  7  Am.  L.  Reg.  (N.  s.) 
635;  6  Blatchf.  66;  11  Humph.  420;  1  E.  D. 
Smith,  98,  99,  100;  6  Cush.  73.  d  1  Woolw. 
370;  45  Barb.  223;  2  Woodb.  &  M.  314. 
Oriflamme  (The),  3  Sawyer,  397;  s.  c. 

1  Sawyer,  176.     pp.  469,  572. 
Orndorf  v.  Adams  Express  Co.,  3  Bush, 

194.     p.  889. 
Osborne  v.  Union  Ferry  Co.,  53  Barb. 

629.     p.  108. 
Ouimit  V.  Henshaw,  35  Vt.  605.     pp. 

512,  520,  532. 

c  27  Iowa,  27;  57  N.  Y.  559;  73  HI.  513;  37 
N.  Y.  Superior  Gt.  532;  38  Vt.  416. 


Pabst    V.    Baltimore    etc.    R.    Co.,    2 

McArthur,  42.     pp.  231,  268. 
Pacific  (The),  1  Blatchf.  569.     pp.  29, 

464,  467. 
Packet   Co.   v.  Clough,   20  Wall.  528. 

pp.  44,  558. 

C  2  Mont.  520,  521. 

Paducah  etc.  R.  Co.  v.  Hoehl,  12  Bush, 

41.     p.  552. 
Page  V.  New  York  etc.  R.  Co.,  6  Duer, 

523.     p.  67. 
Paine  v.  Chicago  etc.  R.  Co.,  45  Iowa, 

569.     pp.  571,  575. 
Palmer  v.  Andover,  2   Cush.  600.    p. 

220. 

cl  Allen,  32;  25  Iowa,  110,  111,  112,  114, 
115;  13  Hun,  85;  3  Allen,  405;  9  Kan.  558;  53 
Mo.  301;  7  Gray,  102,  103,343;  117  Mass.  710; 
10  R.  I.  308;  41  N.  H.  52,  334;  6  Reporter,  719; 
97  Mass.  265;  22  Wis.  679;  43  Ind.  597;  10 
Allen,  27;  12  Allen,  261;  44  Barb.  391;  35  111. 
66;  34  N.  H.  188;  51  Me.  140;  35  N.  H.  276;  42 
N.  H.  216.  ?  29  Wis.  304,  305;  51  Me.  128, 
130,  132. 

Palmer  v.  Charlotte  etc.  R.  Co.,  3  So. 

Car.  580.     p.  70. 

c  47  Iowa,  86;  10  Ch.  Leg.  N.  78.    «l  48  Vt. 
235. 
Palmeter  v.  Wagner,  10  Alb.  L.  J.  149. 

p.  532. 


Pardee  v.  Drew,  25  Wend.  459.     pp.  7, 

511,  521. 

C3  Barb.  389,  390;  41  Miss.  679;  15  Mich. 
142;  6  Hun,  547;  2  Bosw.  604;  44  N.  H.  330, 
331 ;  42  X.  Y.  329, 332 ;  7  Mete.  601 ;  1  Am.  Rail. 
Cas.  394;  6  Hill,  589;  21  Iowa,  26;  13  111.  749; 
17  Am.  L.  Reg.  (N.  8.)  511;  72  N.  Y.  58;  6 
Cush.  72;  1  E.  D.  Smith,  99;  7  Hill,  563;  25 
Wend.  459;  24  La.  An.  573. 
Park  V.  O'Brien,  23  Conn.  339.     p.  552. 

c45  How.   Pr.  89;    17  Mich.  120,  122;  29 
Conn.  209;  14  Minn.  96;  34  N.  Y.  14;  21  Md. 
294. 
Parker  v.  Adams,  12  Mete.  415;    s.  c. 

1  Thomp.  on  Neg.  376.     p.  551. 

c  19  Conn.  576;  18  N.  Y.  252;  7  Wis.  431;  42 
Me.  336;  21  Iowa,  26;  10  Cush.  496,  497;  24  N. 
J.  L.  284;  37  Cal.  422;  21  Ohio  St.  593;  52  N. 
H.  554 ;  24  Vt.  495 ;  47  Miss.  421 ;  6  Gray,  71, 72; 
104  Mass.  62;  37  Mo.  552. 
Parker  v.  Erie  etc.  R.  Co.,  5  Hun,  57. 

pp.  344,  367. 
Parker  v.  South-Eastern  R.  Co.,  1  C. 

P.  Div.  618;  s.  c.  2  C.  P.  Div.  416; 

12  Eng.  Law  &  Eq.  12.     p.  519. 

C  10  Jones  &  Sp.  363. 

Parker  v.  Union  Woollen  Co.,  42  Conn. 

399.     p.  220. 
Parks  V.  Ross,  11  How.  372.    p.  505. 
Parmalee  v.  Fischer,  22  111.  212.     p.  510. 
Parmalee  v.  Lowitz,  74  111.  116.     pp. 

26,  525. 
Parnaby  v.   Lancaster   Canal   Co.,   11 

Ad.  &  E.  223;  s.  c.  3  Nev.  &  P.  523; 

3  Per.  &  Dav.  162 ;  1  Thomp.  on  Neg. 

541.     pp.  153,  224. 

c  122  Mass.  366,  367,  373;  L.  R.  1  C.  P.  287; 
35  L.  J.  (C.  P.)  189;  11  C.  B.  (N.  8.)  206;  12 
Jur.  (N.  S.)  433,  572,  578;  L.  R.  1  H.  L.  103, 123; 
11  H.  L.  Cas.  701,  727 ;  .35  L.  J.  (Exch.)  227, 
237;  4  Jur.  (n.  s.)  642;  27  L.  J.  (Exch.)  324; 
7  Hurl.  &  N.  336,  339;  30  L.  J.  (Exch.)  332;  8 
Jur.  (N.  8.)  491,  492,  991;  59  N.  Y.  32;  7  Re- 
porter, 479 ;  91  U.  S.  551 ;  5  C.  B.  615 ;  11  Exch. 
270 ;  4  Hurl.  &  N.  351 ;  2  Best  &  S.  117 ;  31  L.  J. 
(Q.  B.)  195;  44  L.  J.  (Q.  B.)  90;  L.  R.  10  Q.  B. 
215;  L.  R.  4Q.  B.  385. 

Parsons  v.  Bedford,  3  Pet.  446.     p.  609. 
Parsons  v.  Monteath,  13  Barb.  353.     p. 

383. 
Passenger  R.  Co.  v.  Young,  21  Ohio 

St.  508.     pp.  369,  374. 
Paterson   v.   Wallace,   1   Macq.  H.  L. 

Cas.  748.     p.  562. 

c2  Lans.  516;  28  Ind.  31;  7  Hurl.  &  N.  938; 


xlviii 


TABLE    OF    CASES    CITED. 


12  Ohio  St.  488;  17  Wall.  664;  3  Dill.  325;  49 
Barb.  327,  569;  11  Hun,  594;  L.  R.  7  C.  P.  280; 
6  Hun,  33 ;  46  Mo.  170 ;  3  Hurl.  &  N.  655 ;  27  L. 
J.  (Exch.)  406;  67  Me.  107;  50  Miss.  191;  106 
Mass.  285 ;  62  Me.  467 ;  3  Robt.  84 ;  28  How.  Pr. 
476 ;  36  Pa.  St.  304 ;  24  N.  Y.  413,  414,  445 ;  8 
Hun,  258,  259;  5  Kan.  182;  2  Hurl.  &  N.  732; 
57  Me.  131;  25  N.  Y.  566,  567;  48  Me.  118;  29 
Conn.  560. 
Patten  v.  Chicago  etc.  R.  Co.,  32  Wis. 

524.     pp.  567,  568. 
Patterson  v.  Burlington  etc.  R.  Co.,  38 

Iowa,  279.     p.  552. 

c  45  Iowa,  663,  664 ;  38  Iowa,  567,  568. 
Patscheider  v.  Great  Western  R.  Co., 

26  Week.  Rep.  268;  s.  c.  6  Cent.  L. 

J.   275;    5   Reporter,   781;    3   Exch. 

Div.  153;  7  Am.  L.  Reg.  (n.  s.)  799, 

pp. 532,  534. 
Patten  v.  Chicago  etc.  R.  Co.,  32  Wis. 

524.     pp. 108, 272. 
Payne  v.  Chicago  etc.  R.  Co.,  39  Iowa, 

523.     p.  294. 
Pa}ne  v.  Great  Northern  R.  Co.,  2  Post. 

&  Fin.  619.     p.  206. 
Pearson  v.  Duane,  4  Wall.  605;  s.  c.  6 

Am.  L.  Reg.  (n.  s.)  631.    pp.  30,  303, 

464,  465,  524,  568.     (In  full,  p.  17.) 

c  18  Int.  Rev.  Rec.  55;  11  Blatchf.  237. 
Peck  V.  Neil,  3  McLean,  22.    pp.  238, 

574. 

c  i  Iowa,  548 ;  27  La.  An.  5 ;  5  N.  H.  433. 
Peck  V.  New  York  etc.  R.  Co.,  70  N.  Y. 

587.     pp. 345,  370, 374, 376. 
Peck  V.  Weeks,  34  Conu.  145.     p.  386. 
Peek  V.  North  Staffordshire  R.  Co.,  10 

H.  L.  Cas.  473.     p.  390. 
Peett?.  Chicago  etc.  R.  Co.,  19  Wis.  118. 

pp.  421,423. 
Peixotti  V.  McLaughlin,  1  Strobh.  468. 

pp.26,  520,  521. 
Pendleton  v.  Kinsley,  3  Cliff.  416.     pp. 

365,  369,  470.     (In  full,  p.  352.) 
Peninsular   etc.    Steam    Nav.    Co.    v. 

Shand,   11    Jur.    (n.    s.)    771;   s.  c. 

13  Week.  Rep.  1079;  12  L.  T.  (n.  s.) 

808.     pp.  525,  526. 

c  35  Upper  Canada  Q.  B.  562;  45  N.  Y.  117; 
55  Pa.  St.  58;  L.  R.  2  Ad.  &  E.  396;  L.  R.  3  C. 
P.  18;  26  Upper  Canada  Q.  B.  498. 
Pennsylvania  Canal  Co.  v.  Beutley,  66 

Pa.  St.  30.     pp.  552,  563. 

c  11  Ind.  254;  67  Me.  107;  41  Iowa,  231;     72 


Pa.  St.  141;  48  Cal.  426;  70  Pa.  St.  363;  75  Pa. 
St.  86,  376;  1  Cent.  L.  J.  374. 
Pennsylvania  R.  Co.  v.  Allen,  53  Pa. 

St.  276.     p.  571. 
Pennsylvania  R.  Co.  v.  Books,  57  Pa. 

St.  339.     pp.  51,   52,    329,    556,    561, 

571. 

c  59  Ind.  320;  86  Pa.  St.  146;  58  Me.  192;  44 
Iowa,  318. 
Pennsylvania  R.  Co.  v.  Henderson,  51 

Pa.  St.  315.     pp.  45,  386,  387,  388, 

401. 

c  56  Me.  244;  5  Neb.  121;  47  Ind.  486;  17 
How.  368,  369,  370;  55  Pa.  St.  59;  63  Pa.  St. 
17;  19  Ohio  St.  14;  20  Minn.  130;  39  Iowa,  254. 
d  34  N.  J.  L.  517. 

Pennsylvania  R.  Co.  v.  Kelly,  31    Pa. 

St.  372.     p.  293. 
Pennsylvania  R.  Co.  v.  Kilgore,  32  Pa. 

St.  292.     pp.  66,  227,  267. 

C  30  Ohio  St.  238 ;  40  Miss.  386 ;  63  N.  Y.  560; 
49  N.  Y.  53. 
Pennsylvania  R.    Co.   v.   McCloskey's 

Administrator,   23  Pa.  St.  526.    pp. 

228,  266,  267,  402. 

c  52  Pa.  St.  390;  51  Pa.  St.  328,  3.31;  6  Am. 
L.  Reg.  716 ;  26  Minn.  129 ;  21  Ind.  52 ;  2  Cent. 
L.  J.  367 ;  39  Iowa,  249,  254.    d  33  Pa.  St.  329; 
8  Am.  L.  Reg.  37. 
Pennsylvania  R.  Co.  v.  McTighe,  46  Pa. 

St.  316.     p.  552. 

c  3  Daly,  382 ;  15  Wall.  408. 
Pennsyljania    R.    Co.    v.   Schwarzen- 

berger,  45  Pa  St.  208.     pp.  437,  525. 
Pennsylvania  R.  Co.  v.  Sly,  65  Pa.  St. 

205.     p.  543. 

C  29  Gratt.  436. 

Pennsj'lvania  R.  Co.  v.  The  People,  31 

Ohio  St.  537.     p.  544. 
Pennsj'lvania  R.  Co.  v.  Vandiver,  42  Pa. 

St. 365.     pp.  317,  363,  370,  374,  375. 

c  36  Wis.  464,  675;  11  Nev.  364;  3  Cliff.  429; 
57  Me.  215. 
Pennsylvania  R.  Co.  v.  Weber,  76  Pa. 

St.  157 ;  s.  c.  72  Pa.  St.  27.     p.  552. 

c  5  Reporter,  377;  79  Pa.  St.  390. 
Pennsylvania  R.  Co.  v.  Zebe,  33  Pa.  St. 

318;  s.  c.  37  Pa.  St.  420;  8  Am.  L. 

Reg.  27.     pp.  233,  269,  293. 

e  28  Mich.  455 ;  56  Pa.  St.  297 :  39  Md.  348 ;  53 
Pa.  St.  4.'J7,  459;  100  Mass.  215;  29  Iowa,  38;  44 
Pa.  St.  178;  13  Ind  371;  35  Pa.  St.  71,  72,  73;  36 
Pa.  St.  303;  21  Wis.  375;  24  Md.  107;  37  Mich. 
215. 


TABLE    or    CASES    CITED. 


xlix 


Penton  v.  Grand  Trunk  R.  Co.,  28  Up- 
per Canada  Q.  B.  367.    pp.  532,  534, 
536. 
People  V.  Caryl,  3  Park.  Or.  Cas.  326. 

pp.  303,  336,  375,  465. 
People  V.  Easton,  13  Abb.  Pr.  (n.  s.) 

160.    p.  349. 
People  V.  Jillson,  3  Park.  Cr.  Cas.  234. 
pp.  30,  43,  341,  376. 
C  7  Hun,  144. 
People  V.  Wilson,  17  111.  137.    p.  323. 
Peoria  etc.  R.  Co.  v.  Thompson,  56  Dl. 

138.    p.  215. 
Percy  v.  Millaudon,  8  Mart.  (n.  s.)  75. 

p.  179. 
Perkins  v.  Concord  R.  Co.,  44  N.  H. 
223.     pp.  557,  559. 
C  48  N.  H.  545. 
Perkins  v.  Eastern  etc.  R.  Co.,  29  Me. 

307.     p.  552. 
Perkins    v.   Missouri    etc.  R.  Co.,  55 
Mo.  202.     p.  575. 

c  66  Mo.  545,  595;  2  Cent.  L.  J.  540;  59  Wis. 
33. 

Perkins  v.  New  York  etc.  R.  Co.,  24 

N.  Y.  196 ;  s.  c.  2  Am.  L.  Reg.  (N.  S.) 

318.     pp.  383,  400,  402. 

C  51  Pa.  St.  326;  25  N.  Y.  444,  446,  453,  455; 

32  N.  J.  L.  413 ;  34  N.  J.  L.  516 ;  17  How.  364 ;  3 

Lans.  108;  21  Ind.  51,  52;  37  Mich.  114;  2  Cent. 

L.  J.  367.    ?  37  111.  507 ;  51  Pa.  St.  328 ;  47  Ind. 

485;  20  Minn.  128, 129. 

Perkins  v.  Wright,  37  Ind.  27.     pp.  520, 

521,  537. 
Peter's  Case,  9  Am.  L.  Rev.  164.    pp. 

347,  348. 
Peters  v.  Rylands,  20  Pa.  St.  497.    pp. 

412,  413. 
Petty  V.  Great  Western  R.  Co.,  L.  R.  5 
C.  P.  461,  note.     pp.  231,  268. 
c  40  L.  J.  (Q.  B.)  191,  201 ;  L.  It.  6  Q.  B.  383, 
402. 

Phelps  V.  London  etc.  R.  Co.,  19  C.  B. 

(N.  8.)  321;  s.  C.  11  Jur.  (n.  S.)  652; 

34  L.  J.  (C.  P.)  259;  13  Week.  Rep. 

782;  12  L.  T.   (n.  s.)  496.     pp.  506, 

611,  512. 

c  L.  R.  6  Q.  B.  619;  40  L.  J.  (Q.  B.)  303;  32 
Wis.  99;  56  Me.  61;  8  Am.  L.  Keg.  (N.  8.)  399. 
Philadelphia  etc.  B.  Co.  v.  Derby,  14 

How.  468.     pp.  44,  104,  177,  197,  201, 

224,  316,  317,  359,  363,  373,  374,  391, 


398,  399,  440,  480,  524.     (In  full,  p. 
31.) 

c  47  Ind.  485,  487 ;  30  111.  24 ;  41  Ala.  502 ;  44 
Miss.  492;  33  Wis.  54;  56  Me.  241;  3  Cliff.  424, 
425;  17  How.  383;  17  Wall.  374;  16  How.  474; 
25  N.  T.  457;  34  N.  T.  516;  51  Pa.  St.  325;  36 
Wis.  462,  463,  675;  106  Mass.  188;  11  Nev.  364; 
2  Am.  L.  T.  119;  34  Barb.  358;  104  Mass.  120; 
7  Bosw.  136 ;  37  Mo.  260,  546 ;  44  Ind.  202.  203 ; 
48  N.  H.  314;  58  N.  Y.  134;  19  Ohio  St.  13;  36 
Mo.  434;  26  Barb.  645;  6  Am.  L.  Reg.  715;  24 
N.  Y.  193;  3  Allen,  21;  5  Duer,  196,  197;  15 
Alh.  L.  J.  62;  20  Minn.  128,  130,  133;  49  Me 
281;  15  ni.  469;  38  Ind.  126;  Chase's  Dec.  153; 
57  Me.  216;  5  Ind.  342;  37  Mich.  115;  11  Gratt. 
712;  57  N.  Y.  395;  41  Mo.  508;  39  Iowa,  249, 
253;  2  Ben.  552;  4  Ben.  355 
Philadelphia  etc.  R.  Co.  v.  Hassard,  75 

Pa.  St.  367.     pp.  268,  445. 
Philadelphia  etc.  R.  Co.  v.  Long,  75  Pa. 

St.  257.     p.  293. 
Philadelphia  etc.  R.  Co.  v.  Quigley,  21 

How.  210.     pp.  358,  573. 
Philadelphia  etc.  R.  Co.  v.  Spearen,  47 
Pa.  St.  300.     p.  562. 
c  3  Daly,  385;  33  Ind.  359;  18  Ohio  St.  414; 
39  Md.  580 ;  65  Pa.  St.  273,  274,  276 ;  2  Neb.  340 ; 
82  Pa.  St.  141;  37  Mo.  294;  69  Pa.  St.  215;  33 
Iowa,  568. 
Phillips  V.  Earle,  8  Pick.  182.     pp.  498, 

528. 
Phillips  V.  Rensselaer  etc.  R.  Co.,  57 
Barb.  644;  s.  c.  49  N.  Y.  177.     pp. 
106,  226,  267,  268. 
d  3  N.  Y.  S.  C.  (T.  &  C.)  687. 
Pier  V.  Finch,  24  Barb.  514.     pp.  65,  71. 

c  5  Neb.  125 ;  7  Hun,  673. 
Pickford  v.  Grand  Junction  R.  Co.,  8 

Mee.  &  W.  372.     p.  7. 
Pike  V.  Chicago  etc.  R.  Co.,  40  Wis. 

583.    p.  519. 
Pikei;.  Polytechnic  Institution,  1  Post. 
&  Fin.  712.     p.  153. 
c  L.  R.  5  Q.  B.  189;  L.  R.  4  Q.  B.  385. 
Pillow  V.  Bushnell,   5   Barb.    156.     p. 

486. 
Pittsburgh  etc.  R.  Co.  v.  Andrews,  39 

Md.  329.  pp.  257,  562,  565,  571. 
Pittsburgh  etc.  R.  Co.  v.  Bingham,  29 
Ohio  St.  364;  s.  c.  16  Am.  L.  Reg. 
(N.  s.)  637.  p.  106. 
Pittsburgh  etc.  B.  Co.  v.  Brigham,  29 
Ohio  St.  374.  p.  105.  (In  full,  p. 
101. 


d 


TABLE    OF    CASES    CITED. 


Pittsburgh  etc.  R.  Co.  v.  Caldwell,  74 

Pa.  St.  421 .    pp.  44,  291 ,  293,  345,  445. 

o  75  Pa.  St.  376;  21  Minn.  214. 
Pittsburgh  etc.  R.  Co,  v.  Evans,  53  Pa. 

St.  250.     p.  562. 

c  46  Ind.  48;  4  Or.  55;  38  Ind.  306. 
Pittsburgh  etc.  R.  Co.  v.  Hennigh,  39 

Ind.  509.     pp.  336,  375. 

C  48  Vt.  235. 
Pittsburgh  etc.  R.  Co.  v.  Hinds,  53  Pa. 

St.  512.     pp.  303,  304,  315,  317,  345, 

362,  364.     (In  full,  p.  295.) 

c  106  Mass.  189;  53  ISIiss.  220;  36  Wis.  460, 
461,463;  3  Cliflf.  428;  3  So.  Car.  598;  55  N.  Y. 
113;  ^7  Mass.  369;  76  Pa.  St.  514;  5  Hun,  526; 
36  Wis.  673,675;  57  Me.  216;  7  Reporter,  461. 
Pittsburgh  etc.  R.  Co.  v.  Krouse,  30 

Ohio  St.  222.     pp.  51,  267. 
Pittsburgh  etc.  R.  Co.  v.  McClurg,  56 

Pa.  St.  294.     pp.  257,  270. 

c  16  Am.  L.  Reg.  666 ;  121  Mass.  428 ;  5  Bush, 
5 ;  1  Cent.  L.  J.  374 ;  75  Pa.  St.  376 ;  39  Md.  347 ; 
29  Ind.  86;  52  Mo.  259;  64  Pa.  St.  229;  63  Pa. 
St.  17.    ?  51  111.  340. 
Pittsburgh  etc.  R.  Co.  v.  Nuzum,  50 

Ind.  141 ;  s.  c.  2  Cent.  L.  J.  829.     p. 

66. 

o  52  Ind.  546;  54  Ind.  579;  6  Cent.  L.  J.  390; 
55  Ind.  372  ;  60  Ind.  534. 
Pittsburgh  etc.  R.  Co.  v.  Pillow,  76  Pa. 

St.  510;  s.  c.  2  Cent.  L.  J.  79,     pp. 

29,  303,  364,  556. 
Pittsburgh  etc.  R.  Co.  v.  Slusser,   19 

Ohio  St.  157.     pp.  369,  575. 

c  19  Ohio  St.  170,  172;  11  Nev.  364 ;  45  Iowa, 
572. 

Pittsburgh  etc.  R.  Co.  v.  Theobold,  51 

Ind.  246.     pp.  369,  549,  559. 
Pittsburgh  etc.  R.  Co.  v.  Thompson, 

56  111.   138;  s.   c.  4   Ch.   Leg.  N.   9. 

pp.  206,  211,  212,  572,  582. 

C  29  Gratt.  446;  15  Alb.  L.  J.  62;  4  Qol.  10. 

Pittsburgh  etc.  R.  Co.  v.  Valleley,  32 
Ohio  St.  345;  s.  c.  7  Reporter,  406; 
6  Cent.  L.  J.  277.     pp.  301,  302,  375, 

Pittsburgh  etc.  R.  Co.  v.  Vandyne,  57 
Ind.  576.     pp.  29,  303,  375. 

Pittsburgh  etc.  R.  Co.  v.  Van  Houten, 
48  Ind.  90.     pp.  301,  375. 
c  57  Ind.  579. 

Pittsburgh  etc.  R.  Co.  v.  Vining's  Ad- 
ministrator, 27  Ind.  513.     p.  552. 
c  IS  Ohio  St.  413;  34  Iowa,  160;  46  Ind.  30;    | 


52  Ind.  Ill ;  40  Ind.  552 ;  28  Ind.  288 ;  59  Ind.  92. 

Place  V.  The  City  of  Norwich,  1  Ben. 

89.     p.  4S7. 
Plaster  v.  Illinois  etc.  R.  Co.,  35  Iowa, 

449.     p.  552. 
Piatt  V.  Forty-second  Street  etc.   R. 

Co.,  4  Thomp.  &C.  406.     pp.  51,  446. 
Pleasants  v.  Fant,  22  Wall.  121,     pp. 

252,  505. 
Pleasants  v.  North  Beach  etc.  R.  Co., 

34  Cal.  586.     pp.  28,  580, 
Pluckwell  V.  Wilson,  5  Car.  &  P.  375. 

p.  275, 

c  13  III.  590;  19  Conn.  511,  572;  3  Cush.  544; 
6  Hill,  593;  18  N.  Y.  258;  17  Barb.  98;  20  111. 
491;  2  Woodb.  &  M.  345;  25  Me.  48;  17  Iowa, 
463 ;  32  Me.  50;  29  N.  J.  L.  270,  283 ;  4  N.  Y.  360; 
12  Mete.  420 ;  9  Wis.  217 ;  8  Barb.  395 ;  2  Bradw.' 
39;  29  Me.  310;  19  Wend.  401;  13  Barb.  497. 
Plummer  v.  Webb,  1  Ware,  75.  p.  544. 
Pollard  V.  New  York  etc.   R.  Co.,  7 

Bosw.  437.     p.  263. 
Pomeroy  v.  New  York  etc.  R.  Co.,  4 

Blatchf.  122.     p.  543. 
Pope  V.  Nickerson,  3  Story,  475,    p. 

176. 
Porter  v.  Chicago  etc.  R.  Co.,  41  Iowa, 

358.     p.  371, 
Porter  v.  Hildebrand,  14  Pa,  St,  129. 

pp.  513,  538, 

c  35  Vt.  622;  10  How.  Pr.  333;  13  III.  750. 
Porter  v.  New  York  etc.   R.   Co.,  34 

Barb. 353.     pp.  341,  342,  376. 

e  15  N.  Y.  S.  C.  (T.  &  C.)  581. 
Porter  v.  Steamboat  New  England,  17 

Mo.  290.     pp.  66,  68,  466,  568,  570. 
Potter  V.  Chicago  etc.  R.  Co.,  22  Wis. 

615;  s.  c.  21  Wis.  372.     p.  552. 
Poucher  v.  New  York  etc.  R.  Co.,  49 

N.  Y.  263.     pp.  385,  401,  402. 

c  66  N.  Y.  317 ;  17  How.  367.    ?  47  Ind.  485. 
Poulin  V.  Broadway  etc.  R.  Co.,  1  Abb. 

N.  C.  549;  s.  c.  61  N.  Y,  621 ;  2  Jones 

&  Sp,  296,     p,  443, 
Poulton  V.  London  etc,  R.  Co.,  36  L.  J. 

(Q.  B.)  294;  s.  c.  L.  R.  2  Q.  B,  534. 

p,  373, 

c  9  Ohio  St.  131 ;  L.  R.  6  Q.  B.  70;  46  N.  Y. 
29 ;  Irish  Rep.  5  C.  L.  9,  18,  24.    d  42  L.  J,  (Q. 
B.)  25,27;  L.  R.  8  Q.  B.  40. 
Powell  V.  Devenv,  3  Cush.  300.     p.  220. 

c59  111.  354;  111  Mass.  141;  39  N.  J.  L  310; 


TABLE    OF    CASES    CITED. 


26  Wis.  280;  4  Gray,  407,  410;  14  Allen,  297;  75 

111.  98. 

Powell  V.  Layton,  5  Bos.  &  Pul.  365. 

p.  542. 

c  2  Chit.  Rep.  3,  4;  6  Mau.  &  Sel.  389,  391; 
34  L.  J.  (C.  P.)  296;  3  Wend.  166. 
Powell  V.  Myers,  26  Wend.  591.    pp. 

521,  526. 
Powell  V.  Pennsylvania  R.  Co.,  32  Pa. 

St.  414.     p.  386. 
Powell  V.  Pittsburgh  etc.  R.  Co.,  25 

Ohio  St.  70.     pp.  69,  71,  376. 
Powles  V.  Hider,  3  El.  &  Bl.  207;  s.  c. 

2  Jur.  (N.  s.)  472;  25  L.  J.  (Q.  B.) 

331.    p.  520. 
Pralger  v.  Bristol  etc.  R.  Co.,  23  L.  T. 

(N.s.)  366;  s.  c.  24  L.  T.  (n.  8.)  105. 

pp. 231,  268. 

C  Irish  Rep.  7  C.  L.  45;  2  Q.  B.  Div.  88;  L. 
R.  7  C.  P.  323,  326;  41  L.  J.  (C.  P.)  141. 
Prendergast  v.  Compton,  8  Car.  &  P. 

454.     pp.  20,  365,  469. 

c  4  WaU.  615. 
Prideaux  v.  Mineral  Point,  43  Wis.  513 ; 

s.  c.  6  Cent.  L.  J.  430.     pp.  294,  552. 

C  43  Wis.  675. 
Prentiss  v.  Boston,  112  Mass.  43.     p. 

551. 

c  120  Mass.  266. 
Priest  V.  Hudson  etc.  R.  Co.,  40  How. 

Pr.  456.     p.  368. 
Proctor  V.  Jennings,  6  Nev.  83.     p.  220. 
Pullman  etc.  Co.  v.  Reed,  75  HI.  125. 

pp.  338,  376,  575,  577. 

C  37  Mich.  346. 
Pullman  etc.  Co.  v.  Smith,  73  HI.  360; 

s.  c.  5  Cent.  L.  J.  54 ;  15  Am.  L.  Reg. 

(N.s.)95;  7Ch.  Leg.  N.  237.     p.  531. 

C  118  Mass.  277. 
Puterbaugh  v.  Reasor,  8  Ohio  St.  484. 

p.  284. 
Putnam  v.  Broadway  etc.  R.  Co.,  55  N. 

Y. 108.     pp. 303,  304,  364. 

c  66  N.  Y.  644;  70  N.  Y.  589;  68  N.  Y.  310; 
17  Am.  L.  Reg.  (N.  s.)  512;  5  Hun,  526;  72  N. 
Y.  59;  6  Reporter,  .55 ;  7  Reporter,  461 ;  9  Hun, 
173. 
Putnam  v.  Wood,  3  Mass.  481.    pp.  115, 

357. 
Pym  V.  Great  Northern  R,  Co.,  2  Post. 

&  Fin.  619.     pp.  139,  199. 

c  5  Pa.  St.  324 ;  8  P.est  &  S.  .393;  36  L.  J.  CQ- 
B.)  190;  Irish  Rep.  6  C.  L.  255. 


Q. 

Quarman  v.  Burnett,  6  Mee.  &  W.  599. 

p.  285. 
Quigley  v.  Central  Pacific  R.  Co.,  11 

Nev.  350.     pp.  364,  369,  571,  575,  576, 

678. 
Quimby  v.  Vanderhilt,  17  N.  Y.  306.     pp. 

65,432,437.     (In  full,  p.  423.) 

c  45  N.  Y.  189 ;  7  Lans.  64,  65 ;  56  Me.  240 ;  7 
Hun,  142;  4  Bosw.  234;  12  Wall.  85;  29  Barb. 
56;  4  Abb.  App.  Dec.  524;  28  N.  Y.  217;  46  N. 
H.  219 ;  52  N.  H.  599 ;  54  N.  Y.  515 ;  31  N.  T.  666, 
669,  672. 

R. 

R.  E.  Lee  (The),  2  Abb.  C.  C.  49.    p. 

518, 
Bailroad  Go.  v.  Aspell,  23  Pa.  St.  147. 

pp.  227,  228,  267.     (In  full,  p.  252.) 

c  44  Miss.  485,  487;  52  Pa.  St.  390;  64  Pa.  St. 
230 ;  24  Ga.  306 ;  9  La.  An.  442 ;  48  N.  H.  315. 
a  32  Pa.  St.  296;  49  N.  Y.  53. 
Railroad  Co.  v.  Barron,  5  Wall.  90.     p. 

550. 

o  9  Cent.  L.  J.  132 ;  38  Wis.  625 ;  53  Ind. 
157;  22  Wis.  617;  13  Hun,  75;  6  Nev.  234. 
Railroad  Co.  v.  Brown,  18  Wall.  446. 

p.  349. 

C  13  HuYi,  75. 

Railroad  Co.  v.  Gladmon,  15  Wall.  401. 

p.  553. 

c  71111  607;  3  Dill.  325;  21  Minn.  297;  115 
Mass.  200;  3  Col.  129;  15  Alb.  L.  J.  63;  39  Md. 
576;  53  Ala.  80;  14  Kan.  51;  3  Sawyer,  446;  74 
N.  C.  660;  17  Wall.  660;  46  Iowa,  233;  56  Ind. 
529;  2  Col.  154;  7  Cent.  L.  J.  313;  5  Reporter, 
708;  60  N.  Y.  335. 
Ralroad  Co.  v.  Harris,  12  Wall.  85.    p. 

643. 

c  29  Gratt.  435. 
Railroad  Co.  v.  Houston,  95  U.  S.  697 ; 

s.  c.  6  Cent.  L.  J.  132.     p.  233. 
Railroad  Go.  v.  Jones,  95  U.  S.  655.     p. 

265.     (In  full,  p.  248.) 
Railroad  Co.  v.  Mitchell,  11  Heisk.  400. 

pp.  212,  214. 
Railroad  Go.  v.  Lockwood,  17  Wall.  357  ; 

s.  c.  13  Am.  L.  Reg.    (n.  s.)   326;  6 

Ch.  Leg.  N.  77.    pp.  45,  400,  401.  484. 

(In  full,  p.  378.) 

c  47  Ind.  484,  487,  493;  5  Neb.  122;  15  Alb. 
L.  J.  62;  95  U.  S.  6,58;  43  Conn.  340;  20  Minn. 
131;  10  Ch.  Leg.  N.  380;  4  Cent.  L.  J.  37;  93  U 


lii 


TABLE    OF    CASES    CITED. 


S.  181,  183;  14  Am.  L.  Reg.  34;  15  Alb.  L.  J. 

190 ;  28  Ohio  St.  441. 

Railroad  Co.  v.  Pollard,  22  Wall.  348 ; 

s.  c.  15  Am.  L.  Reg.  (n.  s.)  190.    pp. 

211,  212,  263. 

c  2  Mont.  523. 
Railroad  Co.  v.  Stout,  17  Wall.  657.    p. 

563. 
Railway  Co.  v.  Stevens,  95  U.  S.  655. 

pp.  45,  399,  400,401. 
Railway  Co.  v.  Whitton,  12  Wall.  270. 

p.  544. 
Ralston  v.  Str.  State  Rights,  Crabbe, 

46.  p.  362. 
Rarasden  v.  Boston  etc.  R.  Co.,  104 

Mass.  107.     pp.  366,  374,  440. 

c  36  Wis.  675;  47  N.  Y.  277;  38  Ind.  125. 
Ransom  v.  New  York  etc.  R.  Co.,  15  N. 

Y.  415.     pp.  194,  196,  571. 

c  48  N.  H.  545;  63  Barb.  267;  2  Ben.  239; 
28  N.  Y.  225 ;  18  N.  Y.  542,  545 ;  48  N.  Y.  211 ;  42 
Miss.  629 ;  6  Nev.  238.    ?  6  Nev.  235. 
Rathel  v.  Brady,  44  Ind.  412.     p.  558. 
Raucli  V.  Lloyd,  31  Pa.  St.  358.     p.  293. 
Rawson  v.  Pennsylvania  R.  Co.,  2  Abb. 

Pr.  (N.  s.)   220;  s.  c.  48  N.  Y.  212. 

pp.  65,  526,  527,  538,  547. 

0  7  Hun,  142;  7  Ben.  451;  52  N.  H.  599;  54 
N.  Y.  515. 

Bedhead  v.  Midland  B.  Co.,  8  Best  &  S. 

371;  s.  c.  2  Q.  B.  412;  36  L.  J.   (Q. 

B.)   181 ;  15  Week.  Rep.  831 ;  16  L. 

T.   (N.   S.)  485;  L.  R.  4  Q.  B.  379. 

pp.  199,  208,  357.     (In  full,  p.  124.) 

c  119  Mass.  413;  3  Cliff.  422;  44  N.  Y.  481; 
64  Pa.  St.  229 ;  97  Mass.  368 ;  58  N.  Y.  139 ;  L. 
R.  8  Exch.  146;  42  L.  J.  (Exch.)  97;  L.  R.  5  Q. 
B.  192,  193,  194,  .503,  504,  507,  513;  L.  R.  5  C.  P. 
443;  52  N.  H.  600. 

Reed  v.  New  York  etc.  R.  Co.,  45  N.  Y. 

574.  p.  560. 
Reedie  v.  London  etc.  R.  Co.,  4  Exch. 

244.  p.  285. 
Regina  v.  Faneuf ,  5  Lower  Canada  Jur. 

167.  p.  376. 
Regina  v.  Frere,  4  El.  &  Bl.  598;  s.  c. 

1  Jur.  (N.  9.)  700;  24  L.  J.  (M.  C.) 
68.     p.  337. 

c  Irish  Rep.  3  C.  L.  526. 

Relff  V.  Kapp,  3  Watts  &  S.  21.  p.  523. 

Revenge   (Tlie),  8  Wash.  2(i7.  p.  362. 

Rex  V.  Robinson,  2  Burr.  803.  p.  482. 


Reynolds  v.  Hindman,  32   Iowa,  146. 

p.  552. 

c  38  Iowa,  122,  123,  280,  297;  34  Iowa,  157, 
279;  37  Iowa,  322. 

Rice  V.  Nickerson,  9  Allen,  478.    p.  547. 
Richards  v.  London  etc.  R.  Co.,  7  C. 

B.  839;  s.  c.  6  Eng.  Rail.  Cas.  49;  13 

Jur.  986;    18  L.  J.   (C.   P.)   251;    3 

Am.  L.  Reg.  694.     pp.  518,  532. 

c  3  C.  P.  Div.  226;  18  Alb.  L.  J.  33;  3  Exch. 
Div.  156;  19  Wis.  42;  35  Vt.  620;  41  Ala.  504; 
15  Mich.  135;  L.  R.  6  C.  P.  50;  40  L.  J.  (C.  P.) 
12;  1  Exch.  Div.  222;  16  0.  B.  22,  23;  24  L.  J. 
(C.  P.)  139,  140;  1  Jur.  (N.  S.)  423,429;  3  Am. 
L.  Reg.  696,  697;  L.  R.  6  C.  P.  50.  «l  15  Mich. 
145;  27  L.  J.  (C.  P.)  310;  23  Upper  Canada  Q. 
B.  380;  10  Jur.  (N.  S.)  806;  3  Hurl.  &  Comi38, 
139;  33  L.  J.  (Exch.)  201. 
Richards    v.   Westcott,   2   Bosw.   589. 

pp.  26,  511,  525,  544,  555. 
Richardson  v.  Boston,    19  How.  259. 

p.  505. 
Richardson  v.  Great  Eastern  R.  Co.,  L. 

R.  10  C.  P.  490;  s.  c.  33  L.  T.  (sr.  s.) 

248.     pp.  206,  207,  217,  218. 
Richardson   v.  Great  Eastern  R.  Co., 

1  C.  P.  Div.  342.     p.  208. 
Richardson  v.  Metropolitan  R.  Co.,  37 

L.  J.  (C.  P.)  300.     p.  264. 

c  L.  R.  4  C.  P.  621. 
Riest  V.  Goshen,  42  Ind.  339.     p.  552. 
Rigby  V.  Hewitt,  5  Exch.  240;  s.  c.  19 

L.J.  (Exch.)  291.     p.  285. 

c39  Md.  143;  18  Ohio  St.  410;  59  111.  351, 
352;  14  Allen,  298;  20  Iowa,  224;  51  Me.  441, 
442;  46  Pa.  St.  161.  ?  4  Am.  L.  Reg.  (N.  s.)  18. 
Rigg   V.   Manchester   etc.   R.    Co.,    12 

Jur.  (N.  s.)  525;  14  Week.  Rep.  834. 

p.  105. 
Riley  v.  Home,  5  Bing.  217.     pp.  128, 

132,  137,  493,  494. 
Ripley  v.  New  Jersey  etc.  Transp.  Co., 

31  N.  J.  L.  388.     pp.  69,  336. 

c  7  Phila.  14. 
Robbins  v.  Jones,  15  C.  B.  (n.  s.)  221 ; 

s.  c.  23  L.  J.  (C.  P.)  1 ;  12  Week.  Rep. 

248;  9L.  T.  (n.  s.)  523.     p.  82. 

C  L.  R.  2  O.  P.  375 ;  36  L.  J.  (C.  P.)  193 ;  L.  R. 
1  C.  P.  55. 

Roberts  v.  Boston,  5   Cush.  198.     p. 

349. 
Roberts  v.  Graham,  6  Wall.  578.     pp. 

550,  554. 


TABLE    OF    CASES    CITED. 


liii 


Eoberts  v.  Johnson,  58  N.  Y.  614.    pp. 

211,  227. 
Robertson  v.  New  York  etc.  R.  Co.,  22 

Barb.  91.     pp.265,  329,  556. 

c  64  Mo.  474;  8  Kan.  517;  5  Ch.  Leg.  N.  83; 
57  N.  Y.  390,  396. 

Robinson  v.  Dunmore,  2  Bos.  &  Pul. 

417.     pp.  451,  452,  491,  516. 
Robinson  v.  Fitchburg  etc.  R.  Co.,  7 

Gray,  92.     p.  551. 

cl  Allen,  189,  190;  109  Mass.  127;  38  Ind. 
314,  315;  46  N.  H.  26;  2  Mont.  520;  44  N.  H. 
333. 
Robinson  v.  New  York  etc.  R.  Co.,  66 

N.  Y.  11 ;  s.  c.  65  Barb.  146.     pp.  294, 

553. 
Rob;..    )U  V.  Pioche,  5  Cal.  460.     p.  271. 
Robinson  v.  Western  Pacific  R.  Co.,  48 

Cal.  409.     p.  552. 

c  50  Cal.  484. 
Robson  V.  North-Eastem  R.  Co.,  L.  R. 

10  Q.  B.  271;  44  L.  J.   (Q.  B.)  112; 

23  Week.  Rep.  791 ;  32  L.  T.  (n.  s.) 

551 ;  2  Q.  B.  Div.  85.     pp.  229,  232, 

233,  268. 

c  3  App.  Cas.  209;  2  Exch.  Div.  252. 
Roe  V.  Birkenliead  etc.  R.  Co.,  7  Exch. 

36;  s.  c.  20  L.  J.  (Exch.)  1;  21  L.  J. 

(Exch.)  9;  7  Eng.  Law  &  Eq.  246;  6 

Eug.  Rail.  Cas.  795.     p.  373. 

c  57  Me.  246;  30  L.  J.  (Exch.)  191,  192;  6 
Hurl.  &  N.  365;  15  Upper  Canada  C.  P.  439; 
Irish  Rep.  1  C.  L.  146;  30  L.  J.  (Q.  B.)  151, 152; 
3  El.  &  El.  679,  683. 

Rose  V.  Des  Moines  Valley  R.  Co.,  39 

Iowa,  246.     pp.  44,  399. 
Ross  V.  Hill,  2  C.  B.  877;  s.  c.  3  Dow. 

&  L.  788;  10  Jur.  435;  15  L.  J.   (C. 

P  )  182.     pp.  406,  451,  550. 
Ross  V.  Missouri  etc.  R.  Co.,  4  Mo. 
.     App.  582.     pp.  511,  534. 
Roth  V.  Buffalo  etc.  R.  Co.,  34  N.  Y. 

348.     pp.  534,  535. 

«•  27  Iowa,  27;  8  Bush,  187;  45  N.  T.  187;  49 
Barb.  154;  73  III.  513,  615;  18  Minn.  143;  .50 
Barb.  205  ;  56  Barb.  191;  37  N.  Y.  Superior  Ct. 
.532;  31  Ind.  23;  44  N.  Y.  511.     d  57  N.  Y.  599. 

Rounds    V.  Delaware   etc.  R.  Co.,  04 

N.  Y.  129;  s.  c.  3  Hun,  329;  5  N.  Y. 

S.  C.   (T.  &  C.)  475.     pp.  367,  368, 

.374,  375. 

r  70  X.  Y.  591 ;  13  Hun,  74 ;  18  Alb.  L.  J.  91 ; 
6  Reporter,  404;  12  Hun,  438,  468. 


Ruckers  (The),  4  Rob.  73.     p.  400. 
Rumsey   v.  North-Eastern  R.  Co.,  14 

C.  B.  (N.  s.)  641 ;  s.  c.  32  L.  J.  (C.  P.) 

244;  14  Week.  Rep.  911 ;  8  L.  T.  (N. 

S.)  666 ;  10  Jur.  (n.  s.)  208.     pp.  524, 

529. 

c  15  Upper  Canada  0.  P.  436. 
Rusch  V.  Davenport,  6  Iowa,  443.     p. 

552. 

c  16  Iowa,  346;  32  Iowa,  327;  17  Mich.  118; 

29  Iowa,  47 ;  44  Iowa,  675 ;  21  Iowa,  414 ;  38 
Iowa,  567;  26  Iowa,  268;  4  Or.  55;  54  Miss. 
395 ;  9  Iowa,  203. 

Russell  V.  Hudson    River  R.  Co.,  17 

N.  Y.  134.     p.  48. 

C  IS  N.  Y.  433;  53  Pa.  St.  457;  12  Ohio  St. 
495 ;  49  Barb.  326 ;  14  Minn.  364 ;  38  Pa.  St.  Ill ; 
10  Allen,  238;  11  Kan.  93;  6  Reporter,  126;  46 
Texas,  539 ;  76  lU.  398 ;  16  N.  Y.  165, 167 ;  5  Neb. 
497;  18  Ind.  230;  25  N.  Y.  565,  567;  44  Cal.  82; 

30  Barb.  235;  86  Pa.  St.  440;  8  Kan.  517. 
Ryall  V.  Kennedy,  8  Jones  &  Sp.  847. 

p.  544. 
Ryan  v.  Cumberland  etc.  R.  Co.,  23  Pa. 

St.  384.     p.  47. 

c  63  Pa.  St.  151 ;  53  Ga.  16 ;  53  Pa.  St.  457 ;  38 
Pa.  St.  110;  21  111.  26;  3  Sawyer,  441;  6  Re- 
porter, 126;  49  Miss.  283;  20  Md.  221,  222;  59 
Pa.  St.  246,  247 ;  28  Ind.  377 ;  46  Texas,  539,  550 ; 
27  Md.  601;  76  111.  397;  32  Md.  418;  44  Cal.  82; 
42  Ala.  719;  86  Pa.  St.  440. 
Ryan  v.  Hudson  etc.  R.  Co.,  1  Jones  & 

Sp.  137.     p.  553. 
Ryland  v.  Peters,  5  Phila.  264.    p.  291. 

S. 

Sabin  v.  Vermont  etc.  R.  Co.,  25  Vt. 

363.    p.  545. 
Safford  v.  Drew,  3  Duer,  627.     p.  549. 

C  29  Gratt.  439 ;  26  111.  403. 
Sager  v.  Portsmouth,  31  Me.  228.    p. 

388. 
Sales  V.  Western  Stage  Co.,  4  Iowa,  547. 

p. 200. 
Saltonstall  v.  Stockton,  Taney's  Dec. 

11;  s.c.  13  Pet.  187.  pp.  28,  544,  562. 
Sampson  v.  Coy,  15  Mass.  493.  p.  550. 
Sanford  v.  Catawissa  etc.   R.  Co.,   2 

Phila.  107.     p.  28. 
Sanford  v.  Eighth  Avenue  etc.  R.  Co., 

23  N.  Y.  343;  s.  c.  7  Bo.sw.  122.    pp. 

302,  307,  374,  443. 

C  3  Clilf.  428;  64  N.  Y.  138;  6  Daly,  223,  224; 


liv 


Table  of  cases  cued. 


3  Jones  &  Sp.  128 ;  46  N.  Y.  2S ;  66  N.  Y.  457 ;  4 
Hun,  6S4 ;  46  X.  H.  223.    ?  36  Wis.  576. 
Satterlee  v.  Groat,  1  Wend.  272.    p.  452. 
Sauvinet  v.  Walker,  27  La.  An.  14.     p. 

347. 
Sawyer  v.  Burlington  etc.  K.  Co.,  27  Vt. 

377.     pp.  101,417. 
Sawj'er  v.  Dulany,  30  Texas,  479.     p. 

544. 
Sawyer  v.  Hannibal  etc.  R.  Co.,  37  Mo. 

240,     pp.  199,  208,  210,  211,  582. 
Sawyer  v.  Saner,  10  Kan.  466.     p.  239. 
Schechardt  v.  Aliens,  1  Wall.  369.    p. 

505. 
School  District  v.  Boston  etc.  R.  Co., 

102  Mass.  552.     p.  388. 
Schopman  v.  Boston  etc.  R.  Co.,  9  Cush. 
24.     pp. 417,  434. 

c  56  Me.  240;  46  X.  H.  220,  221 ;  8  Allen,  233. 
Schuerman  v.  Missouri  R.  Co.,  3  Mo. 

App.  565.     p.  552. 
Scott  V.  Dublin  etc.  R.  Co.,  Irish  Rep. 
lie.  L.  377.     pp.  231,266. 
c  24  Upper  Canada  Q.  B.  106. 
Sears  v.  Eastern  R.  Co.,  14  Allen,  433. 
p.  G8. 

c  63  Me.  301 ;  42  N.  H.  604. 
Seabrook  v.  Hecker,  2  Robt»291.    p. 

562. 
Seaver  v.  Boston  etc.  R.  Co.,  14  Gray, 
466.     p.  48. 

c  102  Mass.5»4;  49  Barb.  326;  14  Minn.  364; 
46  Mo.  169;  10  Allen,  237,  238;  55  Ind.  49;  11 
Kan.  93;  59  Pa.  St.  251;  S  Allen,  446;  3  Col. 
510;  119  Mass.  421;  41  Ala.  717;  8  Kan.  517. 
Seger  v.  Burkhamsted,  22  Conn.  290. 
p.  571. 

C  33  Conn.  55;  27  Conn.  300;  44  Iowa,  322; 
48  N.  H.  545 ;  6  Xev.  231,  233. 
Seigel  V.  Eisen,  41  Cal.  109.     pp.  220, 

259,  445. 
Semler  v.  Commissioners  of  Emigra- 
tion, 1  Hilt.  244.     pp.  28,  520. 
c  3  Daly,  398. 
Senecal  v.  Richelieu  Co.,  15  Lower  Can- 
ada Jur.  1.     pp.  511,  515. 
Seymour  v.  Chicago  etc.  R.  Co.,  3  Biss. 

43.     pp.  110,  201,  412,  413,  572,  575. 
Seymour  v.  Greenwood,  6  Hurl.  &  N. 
359;    s.   c.  30  L.  J.    (Exch.)   189;  9 
Week.  Rep.  518   (affirmed  on  appeal, 
30  L.  J.   (Exch.)  327 ;  7  Hurl.  &  N. 


359;   9  Week.  Rep.  785;  4   L.  T.  (n. 

S.)  833).     pp.  301,  363,  373,  374. 

c  3  Clifif.  429;  21  Ohio  St.  524;  L.  R.  8  C.  P. 
154;  42  L.  J.  (C.  P.)  78;  L.  R.  2  Q.  B.  536,  539; 
36  Wis.  675;  46  N.  Y.  29;  Irish  Rep.  5  C.  L.  17, 
18;  L.  R.  3  C.  P.  643;  57  Me.  215;  56  N.  Y.  200; 
47  N.  Y.  126 ;  15  Upper  Canada  C.  P.  438 ;  L.  R. 
5  C.  P.  643;  12  Allen,  55.  d  L.  R.  2  Q.  B.  539. 
Sharp  V.  Gray,  9  Bing.  457 ;  s.c.  2  Moo. 

&  S.  621.     pp.  115,  116,  117,  120,  121, 

126,  127,  130,  131,  134,  135,  138,  146, 

147,  154,  155,  158,  198,  199,  236,  238, 

355,  453. 

c  3  Clitf.  420;  26  N.  Y.  104;  44  N.  Y.  488;  48 
N.  H.  313;  8  Best  &  S.  379,  385,  386,  391,  402, 
403 ;  L.  R.  2  Q.  B.  419,  424,  425,  429,  438,  439 ;  36 
L.  J.  (Q.  B.)  185, 187, 190,  195;  13  Wend.  627; 
13  Vt.  327;  4  Gill,  421;  L.  R.  5  Q.  B.  195,  512; 
13  Conn.  327 ;  6  Barb.  357 ;  23  N.  H.  284.  d  L. 
R.  4  Q.  B.  387,  392;  9  Mete.  7,  12.  ?  21  Md. 
301 ;  44  N.  Y.  481,  482. 
Shaw  V.  New  York  etc.  R.  Co.,  6  Eng. 

RaU.  Cas.  87;  s.  c.  13  Q.  B.  347.     p. 

528. 
Shea  V.  Sixth  Avenue  R.  Co.,  62  N.  Y. 

180;  s.  c.  1  Abb.  N.  C.  550;  5  Daly, 

221.     pp.  3G7,  447. 

C  37  Mich.  213. 

Shedd  V.  Troy  etc.  R.  Co.,  40  Vt.  88. 

pp.  71,  376. 

c  67  Me.  165;  17  Alb.  L.  J.  367;  6  Cent.  L. 
J.  382 ;  54  N.  Y.  516. 

Sheerman  v.  Toronto  etc.  R.  Co.,  34 

Upper  Canada  Q.  B.  451.     p.  49. 
Shelton  v.  Lake  Shore  etc.  R.  Co.,  29 

Ohio  St.  214.     pp.  338,  339,  376. 

c  37  Mich.  346. 
Shepherd  v.  Midland  R.  Co.,  20  Week. 

Rep.  705;  s.  c.  25  L.  T.  (n.  s.)  879. 

p.  110. 
Sheridan  v.  Brooklyn  etc.  R.  Co.,  36  N. 

Y.  39.     pp.  261,  270,  291. 

C  38  N.  Y.  262. 
Sherley  v.  Billings,  8  Bush,  147.     pp. 

304,  317,  364,  365,  369,  557,  571,  581. 

c  36  Wis.  464,  675. 
Sherlock  v.  Ailing,  93  U.  S.  99;  s.c. 

44  Ind.  184.     pp.  481,  544,  556. 

c  95  U.  S.  487. 
Sherman  v.  Chicago   etc.   R.   Co.,   40 

Iowa,  45.     pp.  69,  71,  376. 
Shiells  V.  Blackburne,  1  H.  Black.  168. 

pp. 41,  178. 


TABLE    OF    CASES    CITED. 


Iv 


Ship  Anglo-Norman,  4  Sawyer,  185.     p. 

473. 
Shoemaker  v.  Kingsbury,  12  Wall.  369. 

p.  27. 

c  33  Wis.  63. 
Silva  V.  Low,  1  Johns.  Cas.  184.    p.  357. 
Simmons  v.  New  Bedford  etc.  Steam- 
boat Co.,   97   Mass.   361;    s.   c.    100 

Mass.   34.     pp.   266,   356,   357,   560, 

562. 
Simson  v.  London  etc.  Omnibus  Co., 

42  L.  J.  (C.  P.)   112;  s.  c.  21  Week. 

Rep.  595;  L.  R.  8  C.  P.  390;  28  L. 

T.   (N.  s.)   560;  L.  R.  6  Q.  B.  377. 

p.  211. 
Siner  v.  Great  Western  R.  Co.,  L.  R.  3 

Exch.  150;  s.  c.  L.  R.  4  Exch.  117; 

37  L.  J.  (Exch.)  98 ;  17  Week.  Rep. 

417.     pp.  229,  238,  268. 

C  40  L.  J.  (Q.  B.)  191,  192;  L.  R.  6  Q.  B.  382, 
384,  385 ;  28  Mich.  483 ;  49  N.  Y.  54.  «1  L.  R.  4 
C.  P.  741;  Irish  Rep.  7  C.  L.  47,  48;  44  Miss. 
486;  2  Q.  B.  Div.  87,  88,  89;  ,L.  R.  7  C.  P.  325; 
41  L.  J.  (C.  P.)  325.     ?  24  wIs.  586. 

Skinner  v.  London  etc.  R.  Co.,  2  Eng. 

Law  &  Eq.  360;  s.  c.  5  Exch.  787; 

15  Jur.  299.     pp.  137,  207,  211,  212. 

c  28  L.  J.  (Exch.)  4 ;  8  Best  &  S.  389 ;  L.  R. 
2  Q.  B.  427;  36  L.  J.  (Q.  B.)  189;  9  Jur.  (N.  S.) 
341 ;  1  Moo.  P.  C.  C.  11 ;  1  Duer,  584. 
Slaughter-House   Cases,    l(i  Wall.  36. 

p.  347. 
Sleath  V.  Wilson,  9  Car.  &  P.  607.    pp. 

35,  359. 
Slimmer  v.  Merry,  23  Iowa,  90.    p.  26. 
Sloman  v.  Great  Western  R.  Co.,  67  N. 

Y.  208;  s.  c.  6  Hun,  546;  3  Abb.  N. 

C.  572.     pp.  522,  537. 
Smith  V.  Boston  etc.  R.  Co.,  44  N.  H. 

325;  s.  c.  3  Am.  L.  Reg.   (n.  s)   127. 

pp.  611,  521. 

C  6  Hun,  547;  56  Me.  62;  8  Am.  L.  Reg.  (N. 
8.)  399;  98  Mass.  387;  46  N.  H.  220.  '221. 
Smith  V.  Brown,  L.  R.  6  Q.  B.  729.     p. 

544. 
Smith  V.  Great  Eastern  R.  Co.,  L.  R.  2 

C.  P.  4;  s.  c.  36  L.  J.  (C.  P.)  22;   15 

Week.  Rep.  131 ;  15  L.  T.  (n,  s.)  246. 

p.  105. 
Smith  V.  Hestonville   etc.   R.  Co.,  10 

Cent.  L.  J.  272.     pp.  292,  445. 
Smith  V.  Home,  8  Taun.  144.     p.  495. 


Smith  V.  London  etc.  Docks  Co.,  L.  R. 

3C.  P.  326.     p.  473. 

c  57  N.  T.  387;  62  Me.  5R3 ;  41  N.  Y.  53'b;  59 
N.  Y.  32 ;  35  N.  J.  L.  25 ;  4  Hun,  163. 
Smith  V.  New  York  etc.  R.  Co.,  24  N. 

Y.  222.     pp.  45,  384,  401. 
Smith  V.  O'Connor,  48  Pa.  St.  218.     p. 

293. 
Smith  V.  Pittsburgh  etc.  R.  Co.,  23  Ohio 

St.  10.     p.  571. 

c  44  Iowa,  321 ;  11  Nev.  371. 
Smith  V.  Smith,  2  Pick.  621.     pp.  284, 

551. 

C  21  Pick.  147;  19  Conn.  576;  10  Mete.  365; 
18  N.  Y.  252;  4  Gray,  180;  11  Me.  337;  20  lU. 
490;  8  Gray,  132;  5  Duer,  25;  25  Me.  47;  25 
Ind.  197;  46  Pa.  St.  161,  163;  4  Am.  L.  Reg.  (N. 
S.)  19;  14  Gray,  251;  11  Mete.  444;  17  Iowa, 
463 ;  6  Iowa,  452 ;  7  Pick.  190 ;  3  Fla.  26 ;  32  Me. 
52 ;  24  X.  J.  L.  270,  283,  285 ;  2  Hilt.  39 ;  4  N.  Y. 
300;  12  Mete.  417;  43  Wis.  527;  6  Cent.  L.  J. 
430;  12  Pick.  117;  35  Ind.  466;  33  N.  J.  L.  439; 
35  N.  H.  276;  2  Cush.  605. 
Smith  V.  Steele,  L.  R.  10  Q.  B.  125;   s. 

c.  44  L.  J.  (Q.  B.)  60.     p.  49. 
Smith  V.  Wilson,  31  How.  Pr.  272.     pp. 

303,  470. 
Smoot  V.  Wetumpka,  24  Ala.  112.     pp. 

552,  553. 

c  33  Ala.  130,  132 ;  32  Iowa,  328 ;  4  Mieh.  562 ; 
45  Ala.  184;  21  Mich.  122;  122  Mass.  378;  21 
Iowa,  414;  91  U.  S.  .551;  48  Cal.  426;  26  Iowa, 
268;  1  Black,  53;  36  Ala.  367;  17  111.  146;  53 
Ala.  529 ;  51  Ala.  145,  148. 
Snow  V.  Eastern  R.  Co.,  12  Mete.  44. 

p.  538. 

c  11  Humph.  422;  1  Hilt.  282. 
Southcote's  Case,   4  Burr.   2301.     p. 

499. 
Southcote  V.  Stanley,  1  Hurl.  &  N.  247; 

s.  c.  25  L.  J.  (Exch.)  399.     p.  79. 

c  53  Pa.  St.  459;  5  C.  B.  (N.  S.)  565;  4  Jur. 
(N.  S.)  513;  27  L.  J.  (C.  P.)  321;  EI.  Bl.  &  El. 
170;  L.  R.  1  C.  P.  286;  35  L.  J.  (C.  P.)  189;  12 
Jur.  (N.  S.)  433;  41  N.  Y.  532,  .5.33;  L.  R.  6 
Exch.  77;  40  L.  J.  (Exch.)  45;  25  Mich.  7;  58 
Ind.  126;  40  L.  J.  (Q.  B.)  80;  L.  R.  6  Q.  B.  76. 
Southern  Express  Co.  v.  Crook,  44  Ala. 

468.     p.  389. 
Southern  Express  Co.  v.  Moon,  39  Miss. 

822.     p.  389. 
Southern  R.  Co.  v.  Kendrick,  40  Miss. 

374.     pp.  66,  226,  5.57,  575,  576. 

V  44  Miss.  490,  491,  492;  50  Miss.  319.    d  44 
Miss.  495. 


Ivi 


TABLE    OF    CASES    CITED. 


South-Western  K.  Co.  v.  Bently,  51  Ga. 

311.     p.  624. 
Soutii- Western  R.  Co.  v.  Paulk,  24  Ga. 

356.     pp.  267,  547. 
Spear  v.  Richardson,  37  N.  H.  23.    p. 

659. 
Spencer  v.  Campbell,  9  Watts  &  S.  32. 

p.  332. 

c  26  Pa.  St.  120;  51  N.  T.  490;  51  Me.  338. 
Spencer  v.  Milwaukee  etc.  R.  Co.,  17 

Wis.  487.     p.  258. 

c  39  Md.  351 ;  51  111.  338,  341. 
Spencer  v.  Utica  etc.  R.  Co.,  5  Barb. 

337.     p.  553. 
Spooner  v.  Brooklyn   etc.  R.  Co.,  36 

Barb.  217.     pp.  260,  291. 

c  8  Hun,  498;  67  N.  Y.  597. 
Sprague  v.  Hartford  etc.  R.  Co.,  5  R.  I. 

233.     p.  543. 
Sprague  v.  Smith,  29  Vt.  421.    pp.  412, 

414. 

c  50  Me.  240;  49  N.  H.  34. 
Squire  v.  Central  Park  etc.  R.  Co.,  4 

Jones  &  Sp.  436.     p.  553. 

c  50  How.  Pr.  128;  8  Jones  &  Sp.  182. 
Stallard  v.  Great  Western  R.   Co.,  2 

Best  &  S.  419;  s.  c.  8  Jur.    (n.  s.) 

1076;  31  L.  J.  (Q.  B.)  137;  10  Week. 

Rep.  488;   6  L.  T.   (n.  8.)  217.    p. 

519. 
St.  Amand  v.  Lizardi,  4  La.  243.    pp. 

365,  469. 
Standish    v.   Narragansett    Steamship 

Co.,  Ill  Mass.  512.    p.  341. 

C  48  Vt.  235. 
Stanton  v.  Bell,  2  Hawks,  145.     p.  179. 
State  V.  Campbell,  32  N.  J.  L.  309.     pp. 

71,  336,  340,  375,  376. 

c67  Me.  165;  17  Alb.  L.  J.  367;  6  Cent.  L. 
J.  382. 
State  V.  Chovin,  7  Iowa,  204.    pp.  341, 

376. 

c  45  Iowa,  572 ;  15  Minn.  56 ;  46  N.  H.  219. 
State  V.  Davidson,  30  Vt.  377.     p.  557. 
State  V.  Duffy,  7  Nev.  342.     p.  349. 
State  V.  Goold,  53  Me.  279.     p.  329. 

c  15  N.  Y.  S.  C.  (T.  &  C.)  580.  582;  45  Md. 
352;  7  Phila.  13;  58  Me.  192. 
State  V.  Grand  Trunk  R.  Co,.,  58  Me. 

176.     p.  234. 
State  V.  McCann,  21  Ohio  St.  198.    p. 

349. 


State  V.  Overton,  24  N.  J.  L.  435.     pp. 

65,  70,  313,  315,  345,  377. 

c  6  Reporter,  490;  47  Iowa,  86;  10  Oh.  Leg. 
N.  78;  17  Pa.  St.  436,  437;  5  Daly,  61;  55  111. 
189;  34  Md.  536;  46  N.  H.  219,  220.    ?  36  Wis. 
459,460;  7  Iowa,  210. 
State  V.  Railroad  Co.,  52  N.  H.  529.   p. 

663. 
State  V.  Ross,  26  N.  J.  L.  224.     pp.301, 

303,  375. 

c  33  Iowa,  567. 
State  V.  Thompson,  20  N.  H.  250.    pp. 

336,  375. 

c  76  Pa.  St.  74. 
State  of  New  York  (The),  7  Ben.  450. 

pp.  538,  547. 
Steamboat  Co.  v.  Chase,  16  Wall.  522. 

p.  544. 
Steamboat  New  World  v.  King,  16  How. 

469.     pp.  44,  104,  197,  205,  207,  224, 

359,  391,  398,  399,  480.     (In  fuU,  p. 

175.) 

c20  La.  An.  303;  1  OliflF.  326;  24  La.  An. 
167;  47  Ind.  485,  487;  17  How.  .383;  91  U.  S. 
494;  17  Wall.  374;  51  Pa.  St.  325;  3  Cliff.  425; 
McAll.  107;  41  Ma..  502;  44  Miss.  490;  25  N.  Y. 
457;  28  Vt.  185;  34  N.  J.  L.  516;  2  Am.  L.  T. 
119;  48  N.  H.  313,  314;  58  N.  Y.  134;  19  Ohio 
St.  13;  1  Cin.  Superior  Ct.  55;  6  Ben.  371;  24 
N.  Y.  186,  188,  189,  193;  26  Barb.  645,  646;  & 
Am.  L.  Reg.  715,  716;  3  E.  D.  Smith,  333;  3 
Allen,  21;  37  Mo.  546;  15  Alb.  L.  J.  62;  20 
Minn.  12S,  130,  133;  37  Mich.  115;  49  Me.  281; 
5  Leg.  Gaz.  413;  39  Iowa,  249,250;  1  Chase's 
Dec.  151.     ?  64  Mo.  447. 

Steele  v.  Townsend,  37  Ala.  247.     pp. 

389,  393. 
Steers  v.  Liverpool    etc.    Steam  Co., 

57  N.  Y.  1.     pp.  527,  539. 
Stephen  v.  Smith,  29  Vt.  160.     pp.  25,. 

316,  317,  341,  579. 

C  36  Wis.  462,  463,  673 ;  15  N.  Y.  S.  C.  (T.  & 
C.)  580;  15  Gray,  24;  53  Me.  283. 
Stevens  v.  Armstrong,  6  N.  Y.  435.     p. 

173. 
Stewart  v.  London  etc.  R.  Co.,  3  Hurl. 

&  Colt.  135;  s.  c.  10  Jur.  i^N.  s.)  805; 

33  L.  J.  (Exch.)  199 ;   12  Week.  Rep. 

689;   10  L.  T.  (n.  s.)  302.     p.  528. 

c  L.  R.  6  C.  P.  51 ;  15  Upper  Canada  C.  P. 
436;  40  L.  J.  (C.  P.)  12;  Irish  Rep.  9  C.  L.  112, 
113;  2  Q.  B.  Div.  429;  Irish  liep.  3  C.  L.  580. 
Stiles  V.  Geesey,   71  Pa.  St.    439.    p. 

284. 


TABLE    OF    CASES    CITED. 


Ivii 


Stiles  V.  Western  R.  Co.,  8  Mete.  44. 

p.  558. 
Stillson  V.  Hannibal  etc.  R.  Co.,  67  Mo. 

671 ;  s.  c.  7  Cent.  L.  J.  107.     p.  292. 
Stimpson  v.  Connecticut  etc.  R.  Co., 

98  Mass.  83.     pp.  511,  539. 

c  16  Hun,  547. 
Stinson  v.  New  York  etc.  R.  Co.,  32  N. 

Y.  337.     pp.  386,  401,  402. 
St.  Louis  etc.  R.  Co.  v.  Dalby,  19  111. 

353.     pp.  338,  341,  376,  545. 

c7  Phila.  13;  44  Iowa,  31S;  48  111.  254;  15 
Minn.  56;  46  N.  H.  219;  37  111.  508. 
St.  Louis  etc.  R.  Co.  v.  Myrtle,  51  Ind. 

566.     p.  343. 

C  57  Ind.  597;  55  Ind.  372. 
St.  Louis  etc.  R.  Co.  v.  South,  43  111. 

176.     pp.  341,  342,  376. 
Stockton  V.  Frey,  4  Gill,  406.     pp.  199, 

211,  545,  571. 

c2l  Md.  283,  284,  288,  300;  39  Md.  353;  2 
Mont.  525,  126;  11  Gratt.  712,  715;  6  Nev.  236; 
30  Md.  229. 
Stockwell  V.  United  States,  13  "Wall. 

542.     p.  482. 
Stoddard  v.   Long    Island   R.   Co.,    5 

Sandf.  S.  C.  180.     p.  383. 
Stodcuird  V.  St.  Louis  R.  Co.,  65  Mo. 

514.     p.  563. 
Stokes  V.   Eastern  Counties    R.   Co., 

2   Fost.  &  Fin.  691.     pp.    131,    139, 

213. 

c  L.  R.  4  Q.  B.  390;  8  Best  &  S.  380,  392;  L. 
R.  2  Q.  B.  419,  429;  36  L.  J.  (Q.  B.)  185,  190;  97 
Mass.  368. 
Stokes  V.  Saltonstall,  13  Pet.  181.     pp. 

28,   114,  122,  156,  191,  192,  196,  211, 

213,  236,  237,  238,  255,  261,  266,  357, 

410,  558.     (In  full,  p.  183.) 

c  1  Abb.  Adm.  359;  23  Pa.  St.  150;  21  Md. 
283,  290,  298;  1  McLean,  545;  2  McLean,  160; 
2  Duv.  558;  2  Col.  458;  15  Mich.  140;  34  Barb. 
268;  3  Cliff.  421;  38  Miss.  275;  11  Heisk.  403, 
*04;  22  Wall.  .WO;  2  Mont.  523,  526;  24  Ga. 
365;  44  Ind.  201,204;  48  N.  H.  314;  39Md.353; 
4  Iowa,  548,  549 ;  26  111.  387;  21  Conn.  254;  32 
Barb.  659;  18  N.  Y.  638,  539,  544;  13  Vt.  327;  4 
GiU,  423 ;  24  N.  Y.  193 ;  5  Duer,  197 ;  49  Me. 
281;  13  Cal.  603;  11  Gratt.  710;  17  111.  410;  5 
Ind.  341;  13  Conn.  327;  16  Barb.  116;  37  Mo. 
540;  9  Mete.  13;  15  111.  469.  d  II  Allen,  317. 
Stone  V.  Chicago  etc.  R.  Co.,  47  Iowa, 
82;  8.  c.  10  Ch.  Leg.  N.  78.     pp.  70, 

71,  340,  377,  563. 


Stoneraan  v.  Erie  R.  Co.,  52  N.  Y.  429. 
pp.  522,  523,  538. 
C67N.  T.  212;  6  Hun,  547. 

Stoneseifer  v.  Sheble,  31  Mo.  243.    p. 

568. 

C  59  Ind.  320. 
Storer  v.  Gowen,  18  Me.  177.     p.  177. 
Stuart  V.  Machias  Port,  48   Me.  477. 

p.  271. 
Sullivan  v.  Pliiladelphia  etc  R.  Co.,  30 

Pa.  St.  234;  s.  c.  6  Am.  L.  Reg.  (n. 

8.)  342.     pp.  199,  208,  211,  212,  317, 

562,  563. 

c  36  Wis.  464;  33  Pa.  St.  326;  56  Pa.  St.  296; 
59  Pa.  St.  250;  12  Wall.  376;  34  N.  Y.  412;  11 
Allen,  505. 
Sunday  v.  Gordon,  Blatclif.  &  H.  Adm. 

569.     pp.  66,  466,  467. 
Sutton  V.  Delaware  etc.  R.  Co.,  66  N.  Y. 

243;  s.  c.  4  Hnn,  760.     pp.  225,  233. 
Sutton  V.  Temple,  12  Mee.  &  W.  64. 

p. 137. 
Suydam  v.  Grand  Street  etc.  R.  Co.,  40 

Barb.  375.     p.  553. 

c  36  Mo.  32;  25  Ind.  197. 
Swarthout  v.  New  Jersey  Steamboat 

Co.,  48  N.  Y.  209;  s.  c.  46  Barb.  222. 

p.  475. 
Swindler  v.  Hilliard,  2  Rich.  L.  286. 

pp.  389,  393. 
Sylph  (The),  4  Blatchf.  24;  s.  c.  37  L. 

J.  (Adm.)  14;  L.  R.  2  Adm.  24;    17 

L.  T.   (N.  s.)  519.     p.  481. 

c  L.  R.  2  P.  C.  449;  38  L.  J.  (Adm.)  14;  L. 
R.  2  Adm.  328.  329. 

T. 

Taber  v.  Delaware  etc.  R.  Co.,  71  N. 

Y.  489.     pp.  231,  268. 
Talley  v.  Great  Western  R.  Co.,  6  C. 

P.  44;   s.  c.  40  L.  J.   (C.  P.)  9.     p. 

616. 

c  IS  Alb.  L.  J.  33;  I  Exch.  Div.  22;  16  Abb. 
Pr.  (N.  S.)  355;  32  Wis.  92,  96.    «l  L.  R.  6  Q. 

B.  618 ;  40  L.  J.  (Q.  B.)  302 ;  24  Upper  Canada 

C.  P.  212. 

Tarbell  v.  Central  Pacific  R.  Co.,  34 
Cal.  616,     pp.  28,  29,  30,  376. 

Taylor  v.  Ashton,  11  Mee.  &  W.  401. 
p.  56. 

Taylor  v.  Day,  16  Vt.  566.     p.  548. 

Taylor  v.  Grand  Trunk  R.  Co.,  48  N. 


Iviii 


TABLE    OF    CASES    CITED. 


H.  304;  s.  c.  8  Am.  L.  Reg.  (n.  s.) 

575.     pp.  201,  202,  215,  574. 
Tebbutt  V.  Bristol   etc.  R.  Co.,  40  L. 

J.   (Q.  B.)  78;  s.  c.  23  L.  T.  (n.  s.) 

772;  L.  R.  6  Q.  B.  73;  19  Week.  Rep. 

383.     p.  106. 
Terra  Haute  etc.  R.  Co.  v.  Fitzgerald, 

47  Ind.  79.     pp.  69,  71,  376,  549. 
Terre  Haute  etc.  R.  Co,  v.  Graham,  46 

Ind.  239.     p.  549. 
Terre   Haute  etc.  R.   Co.  v.  Vanatta, 

21   111.  188.     pp.  376,  377,   572,   577, 

579. 

c  40  111.  504;  43  HI.  368;  48  111.  257;  63  111. 
307  ;  46  N.  H.  219.    d  79  111.  590,  592. 
Terry  v.  Flushing  etc.  R.  Co.,  13  Hun, 

359;  s.c.  4  Abb.  N.  C.  523.     p.  70. 
Terry  v.  Jewett,  20  Alb.  L.  J.  393.    p. 

233. 
Thatcher  v.  Great  Western  R.  Co.,  4 

Upper  Canada  C.  P.  543.    p.  562. 
Thayer  v.  St.  Louis  etc.  R.  Co.,  22  Ind. 

26. 

c  44  Iowa,  201 ;  20  Mich.  127 ;  50  Mo.  305 ;  18 
Iowa,  284;  14  Minn.  363;  50  Ind.  84;  23  lud. 
83 ;  34  Ind.  299 ;  8  Cent.  L.  J.  14 ;  58  Ind.  28 ;  40 
N.  y.  449.     o  47  Ind.  482. 

Theobold  v.  Railway  Passengers'  Assur. 

Co.,  26  Eng.  Law  &  Eq.  432.     pp.  51, 

571. 
Thomas  v.  Great  Western  R.  Co.,  14 

Upper  Canada  Q.  B.  389.     p.  512. 
Tliomas    v.    Hook,    4    Phila.  119..    p. 

220. 
Thomas  v.  Rhymney  R.  Co.,  L.  R.  5 

Q.  B.  266 ;  s.  c.  (affirmed  in  Exchequer 

Chamber),  L.  R.  6  Q.  B.  226 ;  40  L.  J. 

(Q.B.)89;  19  Week.  Rep.  477;  24  L. 

T.  (N.  S.)145.     pp.412,  414,  415,  416, 

417. 

e  35  Upper  Canada  Q.   B.  560;  42  L.  J. 
(Exch.)  91,  94,  96. 
Thompson  v.  Belfast  etc.  R.  Co.,  Irish 

Rep.  5  C.  L.  517.     pp.  229,  232,  233, 

268. 
Thompson  v.  New  Orleans  etc.  R.  Co., 

50  Miss.  315.     pp.  (iG,  568,  575. 
Thompson  v.  North  Missouri  R.  Co., 

51  Mo.  190.     p.  5^2. 

Thorogood  v.  Bryan,  8  C.  B.  115;  s.  c. 
18  L.  J.  (C.  P.)  336.     pp.  282,  283, 


284,  285,  286,  287,  288,  289,  294.      (In 

full,  p.  273.) 

c  6  Gray,  72;  L.  R.  10  Exch.  51,  52;  4  Am. 
L.  Reg.  (N.  8.)  17;  29  Vt.  428;  11  C.  B.  147;  6 
Duer,  408;  38  N.  Y.  262;  105  Mass.  79;  31  Barb. 
388;  17  Barb.  97;  L.  R.  9  Exch.  182;  43  L.  J. 
(Exch.)  103,104;  5  Exch.  346;  19  L.J.  (Exch.) 
298;  24  Md.  104;  44  L.  J.  (Exch.)  92,  93;  15 
Irish  Rep.  C.  L.  (N.  S.)  343;  46  Pa.  St.  159,  160, 
161;  38  N.  Y.  262.  ?  2  C.  B.  (N.  S.)  750;  El. 
Bl.  &  El.  728;  43  Wis.  526;  6  Cent.  L.  J.  430; 
19  N.  Y.  343 ;  36  N.  J.  L.  226,  228. 
Thorp  V.  Brookfleld,  36  Conn.  321.     p. 

271. 
Thorp  V.  Hammond,  12  Wall.  409.     p. 

487. 
Thorpe  v.  New  York  etc.  R.  Co.,  19 

Alb.  L.  J.  471;  s.  c.  13  Hun,  70;  4 

Abb.N.  C.  523.     pp.  224,  346,  369,  520. 
Thrings  v.  Central  Park  R.  Co.,  7  Robt. 

616.     p.  562. 
Thurston  v.  Union  Pacific B.  Co.,  4  DUl. 

321 ;  s.c.  8  Ch.  Leg.  N.  323.     pp.  29, 

302,  375.     (In  full,  p.  10.) 
Titcomb  v.  Fitchburg  R.  Co.,  12  Allen, 

254.     p.  220. 
Tobin  V.  Portland  etc.  R.  Co.,  59  Me. 

183.     pp.  106,  226. 

<■  62  Me.  562. 

Todd  V.  Old  Colony  R.  Co.,  3  Allen,  18 ; 

s.  c.  7  Allen,  207.     pp.  44,  252,  257. 

c  56  Pa.  St.  298;  121  Mass.  428;  16  Am.  L. 
Reg.  666 ;  5  Bush,  7 ;  8  Allen,  230,  235 ;  6  Cent. 
L.  J.  47;  39  Md.  346;  14  Allen,  432;  20  Minn. 
128;  29  Iowa,  87;  37  Mich.  114;  95  U.  S.  443. 
fl  104  Mass.  141.  ?  17  Wis.  495. 
Toledo  etc.  R.  Co.  v.  Baddeley,  54  111. 

19.     pp.  227,  271. 
Toledo  etc.  R.  Co.  v.  Beggs,  85  lU.  80. 

pp.  44,  211,  212,  222,  402,  555,  556. 
Toledo  etc.  R.  Co.  v.  Bevin,  26  Ind.  443. 

p.  552. 
Toledo  etc.  R.  Co.  v.  Brooks,  81  lU.  245. 

p.  44. 
Toledo  etc.  R.  Co.  v.  Daniels,  21  Ind. 

256.     p.  547. 
Toledo  etc.  R.  Co.  v.  Hammond,  33 

Ind.  379.     pp.  510,  513,  532,  533. 
Toledo  etc.  R.  Co.  v.  McDouough,  53 

Ind.  289.     pp.  338,  339,  578. 
Toledo  etc.  R.  Co.  v.  Patterson,  63  111. 

304.     pp.  343,  575. 

C  1  Bradw.  477, 478.    d  79  111.  540. 


TABi:^    OF   CASES    CIT: 


lix 


Toledo  etc.  R.  Co.  v.  Riley,  47  111.  514. 

p.  271. 
Toledo  etc.  R.  Co.  v.  Rumbold,  40  111. 

143.     p.  415. 
Tomlinson  v.  Collett,  3  Blackf .  436.    p. 

558. 
Toomey  v.  London  etc.  R.  Co.,  3  C.  B. 

(N.  s.)  146;  s.  c.  27  L.  J.  (C.  P.)  39. 

pp.  79,  80,  83,  84,  90, 105.     (In  full,  p. 

72.) 

c  28  Mich.  453 ;  34  N.  Y.  14 ;  4  Hurl.  &  N. 
784,  786;  L.  R.  8  Q.  B.  177;  42  L.  J.  (Q.  B.)  109; 
U9  L.  J.  (C.  P.)  97,  335;  29  L.  J.  (Exch.)  97;  8 
C.  B.  (N.  S.)  572;  7  Jur.  (N.  S.)  169;  35  N.  J.  L. 
33;  L.  R.  1  C.  P.  282;  35  L.  J.  (C.  P.)  187;  73 
Pa.  St.  125 ;  36  L.  J.  (C.  P.)  23 ;  L.  R.  2  C.  P.  10 ; 
9  Jones  &  Sp.  28;  59  N.  Y.  366;  10  AUeu,  192; 

3  App.  Cas.  1171. 

Torpey  v.  Grand  Trunk  R.  Co.,  20  Up- 
per Canada  C.  P.  446.     p.  49. 
C  34  Upper  Canada  Q.  B.  457,  462.    d  33 

Upper  Canada  C.  P.  548,  549. 

Torpey  v.  Williams,  3  Daly,  162.     pp. 
511,  512,  520. 
c  3  Daly,  393 ;  32  Wis.  100. 

Tower  v.  Utica  etc.  R.  Co.,  7  Hill,  47. 
p.  518. 
c  1  Daly,  153,  154,  205,  495;  3  Daly,  396;  15 

Mich.  141;  3  Barb.  389;  2  Ch.  Leg.  N.  397;  73 

111.  365;  lis  Mass.  277;  16  Abb.  Pr.  (y.  s.)  354 

2  Vbb.  Pr.  (N.  8.)  51 ;  32  Wis.  96;  2  Daly,  2.55 

4  Cent.  L.  J.  37 ;  93  U.  S.  184 ;  15  Alb.  L.  J.  191 
21  Ind.  57.  '!  15  Mich.  135;  17  Am.  L.  Reg. 
(N.  S.)  515       .  X.  Y.  62. 

Townsend  v.  New  York  etc.  R.  Co.,  6 

Thomp.  &  C.  495;  s.  c.  4  Hun,  217. 

pp.  338,  339,  376. 

c  29  Ohio  St.  219 ;  37  Mich.  346 ;  66  N.  Y.  458 ; 
48  Vt.  235. 

Tracy  v.  Wood,  3  Mason,  132.     p.  178. 
Travers  v.  Kansas  etc.  R.  Co.,  63  Mo. 

421.     pp.369,  549. 
Truex  v.  Erie  R.  Co.,  4  Lans.  198.     p. 

261. 
Tucker  v.  Henniker,  41  N.  H.  317.     p. 

220. 
Tuff  V.  Warman,  2  C.  B.  (x.  s.)  750; 

s.  c.  5  C.  B.   (x.  s.)   573.     pp.  251, 

283,  285. 

C  20  N.  Y.  75;  5  Hun,  480;  4  Robt.  213;  .38 
Md.  .599;  101  Mass.  463,  464,  465,  466;  29  Md. 
436;  95  U.  S.  442  ;  52  X.  H.  5.54  ;  12  C.  B.  (N.  S.) 
78;  24  Upper  Canada  Q.  B.  105;  6  Cent.  L.  J. 
46;  36  N.  J.  L.  228. 


Tuller  V.  Talbot,  23  111.  357.     pp.  203, 

206,  239. 

c  15  Alb.  L.  J.  62 ;  ,56  111.  142 ;  5  Ch.  Leg.  N. 
10 ;  48  N.  H.  316 ;  4  Col.  9. 
Tuuney  v.  Midland  R.  Co.,  L.  R.  1  C. 

P.  291 ;  s.  c.  12  Jur.  (n.  s.)  691.     pp. 

48,  147. 

c  53  lU.  340;  49  Barb.  326 ;  62  Me.  465  ;  1  C. 
P.  Div.  167;  59  Pa.  St.  246,  252;  45  L.  J.  389. 
Turner  v.  North  Beach  etc.  R.  Co.,  34 

Cal.  594.     pp.  374,  575,  580. 

c  57  x^Ie.  250;  34  Cal.  590;  44  Iowa,  318;  3 
So.  Car.  598. 
Turner  v.  North  Carolina  R.  Co.,  63  N. 

C. 522.     p.  28. 
Turner  v.  Richmond  etc.  R.  Co.,  70  N. 

C.  1.      p. 376. 
Tyly  V.  Morrice,  Carth.  486.     p.  497. 

u. 

Union  Ins.  Co.  v.  Shaw,  2  Dill.  14.     p. 

482. 
Union  Pacific  R.  Co.  v.  Hand,  7  Kan. 

380.     pp.  201,  555,  577,  583. 
Union  Pr.clflc  R.  Co.  v.  Nichols,  8  Kan. 

505;  s.  c.  4  Ch.  Leg.  N.  82.     p.  46. 

c  64  Mo.  474. 
United  States  v.  The  Anna,  2  Am.  L. 

Reg.  421.     p.  480. 
United  States  v.  The  Bright  Star,  7  Int. 

Rev.  Rec,  179.     p.  481. 
United  States  v.  The  Candace,  9  Int. 

Rev.  Rec.  177.     p.  482. 
United  States  v.  Coombs,  12  Pet.  72. 

p.  486. 
United  States  v.  The  C.  B.  Chu  -ch,  1 

Woods,  275.     p.  482. 
United  States  v.  Cruikshank,  92  U.  S. 

542.     p.  347. 
United  States  v.  The  Echo,  4  Blatchf. 

446.     p.  481. 
United  States  v.  Freeman,  3  How.  556. 

p.  486. 
United  States  v.  The  James  Morrison, 

Newb.  Adm.  241.     p.  481. 
United  States  v.  The  Louisa  Barbara, 

Gilp.  332.     p.  479. 
United  States  v.  The  Newrea,  19  How. 

94.     p.  479. 
United   States  v.  Norton,  1  Low.  179. 

p.  480. 


Ix 


TABLE    OF    CASES    CITED. 


United  States  v.  The  Ottawa,  Newb. 

Adm.  536.     pp.  475,  481. 
United  States  v.  Eeese,  92  U.  S.  214. 

p.  347. 
United  States  v.  Tlie  Seneca,  1  Am.  L. 

Reg.  (N.  s.)  281.     p.  481. 

United  States  v.  Simms,  1  Crauch,  252. 
p.  482. 

United  States  v.  The  Sun,  1  Am.  L. 

Reg.   (N.  s.)  277;  s.  c.  4  West.  L.  J. 

75.     p.  481. 
United  States  v.  The  Thomas  Swan,  9 

Law  Rep.  (n.  s.)  201.    p.  481. 
United  States  v.   The  William  Pope, 

Newb.  Adm.  256.    p.  481. 
Upshare  v.  Aidee,  1  Comyns,  25.    p. 

521. 

V. 

Van  Buskirk  v.  Roberts,  31  N.  Y.  661. 

pp.  65,  66,  432. 

c  52  N.  H.  604 ;  54  N.  Y.  515. 
Van  Den  Eynde  v.  Ulster  R.  Co.,  Irish 

Rep.  6  C.  L.  328.     p.  372. 
Vanderplank  v.  Miller,  Moo.  &  M.  169. 

p.  284. 
Van  Horn  v.  Kermit,  4  E.  D.  Smith, 

453.     pp.  513,  524,  534,  535,  539. 

c  15  Mich.  134 ;  1  Daly,  154 ;  30  N.  T.  617. 
Vankirk  v.  Pennsylvania  R.  Co.,  76  Pa. 

St.  66.    p.  70. 
Van  Lien  v.  Scoville  Man.  Co.,  14  Abb. 

Pr.  (n.  8.)  74 ;  s.  c.  4  Daly,  554.    pp. 

221,  562. 

c  6  Cent.  L.  J.  46;  10  Ch.  Leg.  N.  121;  95 
U.  S.  442. 
Van  Santvoord  v.  St.  John,  6  Hill,  157. 

p.  429. 
Van  Toll  v.  South-Eastem  R.  Co.,  12 

C.  B.  (N.  8.)  75 ;  s.  c.  31  L.  J.  (C.  P.) 

241;  8  Jut.   (n.  s.)   1213;  10  Week. 

Rep.   578;    6  L.  T.   (n.  s.)   244.     p. 

519. 

c  2  Q.  B.  Div.  428,  429.    d  10  Jones  &  Sp. 
363;  1  C.  P.  Div.  626,  631,  632. 

Vedder  v.  Fellows,  20  N.  Y.  126.    pp. 

335,  336,  375. 

c  4  Hun,  219;  9  Thomp.  &  C.  497;  3  Wis. 
570;  42  111.  424 ;  46  N.  H.  220,  221. 

Vicksburg  v.  Hennessy,  54  Miss.  391. 
p.  552. 


Vicksburg    etc.   R.   Co.  v.   Howe,   62 

Miss.  202.     p.  108. 
Vinton  v.  Middlesex  B.  Co.,  11  Allen, 

304.     pp.  20,  29,  301,  302,  303,  317, 

875,  443,  465.     (In  full,  p.  6.) 

C  36  Wis.  463;  53  Miss.  223;  95  U.  S.  503. 
Vinton  v.  Schwab,  32  Vt.  612.     p.  563. 
Virginia  etc.  R.  Co.  v.  Sanger,  15  G-ratt. 

230.     pp.  201,  222. 
Vose  V.  Lancashire  etc.  R.  Co.,  4  Hurl. 

&N.  728;  s.  c.  4  Jur.  (n.  s.)  364;  27 

L.  J.  (Exch.)  249.     p.  224. 

C  3  Hurl  &  N.  656 ;  27  L.  J.  (Exch.)  406 ;  32 
Iowa,  364;   3  Robt.  82;  28   How.  Pr.  473;  3 
Exch.  Div.  344;  49  N.  T.  426;  48  Me.  118. 
Vrede  (The),  Lush.  325;  s.  c.  30  L.  J. 

(Adm.)  209.    p.  471. 

w. 

Wabash  etc.  Canal  v.  Mayer,  10  Ind. 

400.     p.  552. 

c  42  Ind.  342 ;  12  Ind.  523. 
Wade  V.  Kalbfleisch,  58  N.  Y.  282.     p. 

546. 
Wade  V.  Leroy,  20  How.  34.     p.  551. 

c  63  Barb.  266. 
Waite  V.  North-Eastem  R.  Co.,  5  Jur. 

(N.  s.)  936;  28  L.J.  (Q.  B.)  258;  EL 

Bl.  &  El.  728.     pp.  283,  284,  285,  292, 

294. 

c  36  N.  J.  L.  228 ;  L.  R.  10  Exch.  53 ;  8  Best 
&  S.  334.     ?  30  Ohio  St.  470. 

Wakefield  v.  South  Boston  R.  Co.,  117 

Mass.  544.     pp.  71,  376. 

c  67  Me.  166;  17  Alb.  L.  J.  367;  6  Cent.  L. 
J.  382. 

Waland  v.  Elkins,  1  Stark.  272.    pp 

410,  411,  436,  555. 
Walker  v.  Erie  R.  Co.,  63  Barb.  2G0 

p.  212,  560,  569,  570,  583. 
Walker  v.  Herron,  22  Texas,  55.    p 

553. 
Walker  v.  South-Eastem  R.  Co.,  L.  R 

5  C.  P.  640.     p.  373. 
Walker  v.  Transportation  Co.,  3  Wall 

150.     pp.  391,  484. 
Walker  v.  Westfleld,  39  Vt.  246.     p 

553. 
Waller   v.   Harris,  20  Wend.  555.    p 

486. 
Walsh  V.  Chicago  etc.  R.  Co.,  42  Wis 


TABLE    OF    CASES    CITED. 


Ixi 


23;  s.  c.  9  Ch.  Leg.  N.  315.     pp.  29, 

68,  546. 
Walsh    V.  Str.  H.  M.  Wright,  Newb. 

Adm.  494.     pp.  305,  311,  512,  518. 
Walters  v.  Chicago  etc.  R.  Co.,  41  Iowa, 

71.     p.  293. 
Walton  V.  Waterhouse,  2  Saund.  421  a, 

note  2.     p.  56. 
Ward  V.  Central  Park  etc.  R.  Co.,  42 

How.  Pr.  289.     pp.  261,  445. 

C  8  Hun,  498;  67  N.  Y.  597. 
Ward  V.  General  Omnibus  Co.,  42  L.  J. 

(C.  P.)    265;  s.  c.  28  L.  T.    (n.  s.) 

850  (affirming  21   Week.   Rep.  358; 

27  L.  T.  (N.  8.)  761).     p.  370, 
Ward  V.  North  Haven,  43  Conn.  148. 

p.  220. 
Ward  V.  Railroad  Co.,  2  Abb.  Pr.  (n. 

s.)  411.     p.  252. 
Ward  V.  Rich,  1  Vent.  103.     p.  564. 
Ward  V.  Smith,  11  Price,  19.    p.  550. 
Ward  V.  Vanderbilt,  4  Abb.  App.  Dec. 

521.     pp.  66,  432,  466,  567,  570. 
Wardrobe   v.  California  Stage  .Co.,  7 

Cal.  118.     p.  575. 

c  57  Me.  256. 
Ware  v.  Gay,  11  Pick.  106.    pp.  114, 

191,  211,  213,  548,  554. 

c  47  Ind.  481;  8  Pa.  St.  484;  38  Miss.  275;  4 
Iowa,  55;  2  Mont.  5-26;  18  N.  Y.  538;  4  Col.  10. 
d  11  Allen,  217. 
Waring  v.  Clark,  5  How.  441.     p.  481. 

cMcAll.   108;  1  Gin.  Superior  Ct.  55;  41 
Ala.  63. 
Warner  v.  Burlington  etc.  R.  Co.,  22 

Iowa,  166.     p.  522. 
Warner  v.  New  York  etc.  R.  Co.,  44  N. 

Y.  465;  s.  c.  45  Barb.  299.     p.  553. 

c44  Ind.  80;  25  Mich.  282;  7  Jones  &  Sp. 
,350,352;  11  Hun,  219;  4  Jones  &  Sp.  448;  65 
Uarb.  102;  .50  How.  Pr.  108;  38  Iowa,  517;  1 
Bradw.  422;  8  Jones  &  Sp.  183.  ?  65  Barb. 
149. 
Warren  v.  Fitchburg  R.  Co.,  8  Allen, 

227.     p.  269. 

c  2  Gray,  360;  30  Ohio  St.  234,  237;  28  Mich. 
455;  98  Mass.  204;  44  Miss.  4a5;  57  Barb.  651; 
97  Mass.  368;  109  Mass.  405;  11  Allen,  505; 
105  Mass.  78,  207;  34  N.  Y.  27;  10  Allen,  532; 
17  iMich.  120;  35  N.  Y.  37;  100  Mass.  212,  215; 
42  N.  Y.  473;  104  Mass.  116,  Itl;  29  Md.  439. 
Washburn  v.  Nashville  etc.  R.  Co.    3 

Head,  638.     pp.  44,  345. 


Washington  (The)  and  the  Gregory,  9 

Wall.  513.     p.  475. 
Waters  v.  Wing,   59   Pa.  St.  211.     p. 

552. 

c  72  Pa.  St.  140, 141 ;  66  Pa.  St.  33,  34. 
Watson  V.  Ambergate  etc.  R.  Co.,  3 

Eng.  Law  &  Eq.  497.     p.  428, 
Watson  V.  Duykinck,  3  Johns.  335,    pp, 

467,  468, 
Watson  V.  Northern  R.  Co.,  24  Upper 

Canada  Q.  B.  98.     pp. 262,  331,  683. 

c  58  Me.  194. 
Way  V.  Illinois  etc.  R.  Co.,  40  Iowa, 

341.     p.  5.52. 

c  38  Iowa,  102. 
Wayne  County  Turnpike  Co.  v.  Berry, 

5  Ind.  286.     p.  552, 

c  17  Ind.  105;  42  Ind.  342;  26  Ind.  23, 
Weaver  v.  Rome  etc.  R.  Co.,  3  N,  Y. 

S,  C,   (T.  &  C.)  270,     pp,  338,  339, 

376, 

c  4  Hun,  219.    d  6  Thomp.  &  0.  498. 
Webster  v.  Hudson  River  R.  Co.,  38  N. 

Y.  260.     pp.  283,  290,  294. 

c  36  N.  J.  L.  228 ;  65  Barb.  155, 156 ;  66  N.  T. 
14;  64  N.  Y.  147;  13  Hun,  88. 
Weed  V.  Panama  R.  Co.,  5  Duer,  193; 

s.  c.  17  N.  Y.  362.     pp.  68,  361,  364, 

367. 

c  3  Cliff.  427;  7  Bosw.  135;  11  Nev.  364;  36 
Wis.  670,  671,  675;  3  Jones  &  Sp.  128;  20  N.  Y. 
50;  52  N.  H.  604;  57  Me.  216,  235,  237;  6  Bosw, 
703. 

Weed  V.  Saratoga  etc.  R.  Co.,  19  Wend. 

534.     pp.  432,  511,  512,  538,  548,  554. 

c36  Barb.  425;  30  N.  Y.  611,  617,  621;  15 
Mich.  127 ;  20  Pa.  St.  503 ;  29  Barb.  56 ;  9  Lower 
Canada,  178;  1  Newb.  Adm.  496;  27  Vt.  Ill;  24 
N.  Y.  278;  23  Vt.  210;  19  N.  H.  339;  23  N.  H. 
284;  6  Lii.  An.  545;  13  111.  750,  751;  31  Cal.  63; 
6Cush.  73;  1  E.  D.  Smith,  97,99;  1  Hilt.  233. 
?  25  Md.  90. 
Weeks  v.  New  York  etc.  R.  Co.,  72  N. 

Y.  56;  s.  c.  6  Reporter,  54;  17  Am. 

L.  Reg.   (N.  8.)  506;    6  Cent,  L.  J. 

201.     pp.  303,  305,  518. 
Weiss  V.  Pennsylvania  R.  Co.,  79  Pa. 

St.  387. 
Welch  V.  Pullman  etc.  Co.,  16  Abb,  Pr. 

(N.  8.)  352;  s.  c.  1  Buff.  Superior  Ct. 

N.  Y.  457;    4   Abb.  N.  C.   523.     pp.      t 

518,  .531,  .532. 
Welfare  v.  London  etc.  R.  Co.,  L.  R.  4 


Ixii 


TABLE    OF    CASES    CITED. 


Q.  B.  693  ;  s.  c.  38  L.  J.  (Q.  B.)  241 ; 

17  Week.  Rep.  1065;  20  L.  T.  (n.  S.) 

743.     pp.  104,  105. 
Weller  v.  London  etc.  R.  Co.,  L.  R.  9 

C.  P.  126;  s.  c.  43  L.  J.  (C.  P.)  137; 

22  Week.  Rep.  302 ;  29  L.  T.  (N.  s.) 

888.     pp.  229,  231,  233,  268. 

c  44  L.  J.  (Q.  B.)  113;  L  R.  10  Q.  B.  273;  71 
N.  Y.  493. 

Welles  V.  New  York  etc.  R.  Co.,  26 

Barb.  641 ;  s.  c.  24  N.  Y.  181 ;  25  N. 

Y.  442;  6  Am.  L.  Reg.  713.     pp.  383, 

385,  400,  402. 

c  32  N.  J.  L.  413;  34  N.  J.  L.  5]6;  25  N.  Y. 
444,  446,  453;  29  Barb.  610;  51  Pa.  St.  326;  17 
How.  364;  21  Ind.  51,  52;  28  N.  J.  L.  190;  39 
Iowa,  254;  2  Cent.  L.  J.  367;  5  Bosw.  703.  cl 
29  Barb.  610,  611,  615.  ?  37  lU.  505,  507 ;  41 
Ala.  502;  51  Pa.  St.  328;  47  Ind.  485;  20  Minn. 
129. 
Welsh  V.  Pittsburgh  etc.   R.   Co.,   10 

Ohio  St.  75.     p.  387. 
Wentz  V.  Erie  R.  Co.,  5  Thomp.  &  C. 

556;  3  Hun,  241.     pp.  71,  376. 
West  V.   Str.  Uncle  Sana,  McAll.  510. 

pp.  66,  466. 
West  Chester  etc.  R.  Co.  v.  McElwee, 

67Pa.  St.  311.     p.  562. 
West  Chester  etc.  R.  Co.  v.  Miles,  55 

Pa.  St.  209.     pp.  28,  346,  377. 

e  55  111.  189 ;  95  U.  S.  503. 
Weston  V.  New  York   etc.  R.  Co.,  10 

Jones  &  Sp.  156;  s.  c.  3  Abb.  N.  C. 

572.     p.  110. 

c  18  Alb.  L.  J.  70. 
Western  Union  Tel.  Co.  v.  Eyser,  91 

U.  S.  495,  note.     p.  575. 
Weyland   v.   Elkins,    Holt,   227;    s.   c. 

sub  nom.  Waland  v.  Elkins,  1  Stark. 

272.     pp.  236,  237. 
Whalen  v.  St.  Louis  etc.  R.  Co.,  60  Mo. 

323.     pp.  234,  271,  571,  584. 
Wheaton  v.  North  Beach  etc.  R.  Co., 

36  Cal.  590. 

C  2  Mont.  523. 

Wheeler  v.  San  Francisco  etc.  R.  Co., 

31  Cal.  46.     pp.  28,  432. 
Wheelock  v.  Boston  etc.  R.  Co.,  105 
•  Mass.  203.     p.  270. 

Whitaker  v.  Eighth  Avenue  R.  Co.,  51 

N.  Y.  295.     p.  371. 


Whitaker  17.  Manchester  etc.  R.  Co.,  L. 

R.  5  C.  P.  464,  note.     pp.  231,  268. 
Whitall  V.  The  William  Henry,  4  La. 

223.     p.  357. 
White  V.  Boulton,  1  Peake,  113.    pp. 

117,  199,  238,  481. 

c  21  Md.  296,  301.    cl  9  Metc.  7. 
White  V.  McDonough,  3  Sawyer,  311. 

p.  463. 
Whitesell  v.  Crane,  8  Watts  &  S.  369. 

pp.  526,  538. 
Wliitesides  v.  Thurlkill,  12  Smed.  &  M. 

599.     p.  389. 
Whitmore  v.  Steamboat  Caroline,   20 

Mo.  513.     p.  511. 

c  1  Mo.  60. 
Whitney  v.  Clarendon,  18  Vt.  252.     p. 

564. 
Whitton    V.   Chicago  etc.   R.   Co.,   25 

Wis.  424.     p.  544. 
Wilcox  V.  The  Philadelphia,  9  La.  84. 

p.  519. 

C  13  La.  An.  455. 

Wilcox  V.  Rome  etc.  R.  Co.,  39  N.  Y. 

358.     p.  233. 
Wilkie  V.  Bolster,  3  E.  D.  Smith,  327. 

pp.  208,  211,  212. 

C  2  Mont.  525 :  4  Col.  10. 

Wilkinson  v.  Fairrie,  1  Hurl.  &  Colt. 

633;  s.  c.  9  Jur.  (n.  s.)  280;  32  L.  J. 

(Exch.)   73;  7  L.  T.   (N.  s.)  599.     p. 

87. 

c  9  Am.  L.  Reg.  (N.  S.)  108;  35  L.  J.  (C.  P.) 
190;  L.  R.  1  C.  P.  28S;  12  Jur.   (N.  S.)  434;  39 
Iowa,  620;  55  How.  Pr.  173. 
Willetts  V.  Buffalo  etc.  R.  Co.,  14  Barb. 

585.     pp.  271,  293,  339,  376. 

c  37  Mo.  548 ;  31  N.  J.  L.  393 ;  24  Md.  125 ;  10 
Bosw.  33;  16  Abb.  Pr.  349;  39  How.  Pr.  416;  1 
Keyes,  573 ;  33  How.  Pr.  200 ;  2  .\bb.  App.  Dec. 
382;  46  Barb.  270,  271;  22  Barb.  586;  66  Barb. 
51;  60  N.  Y.  333. 
Williams  v.  Carwardine,  4  Barn  &  AdoL 

621.     p.  55. 
Williams  v.  Great  Western  R.  Co.,  10 

Exch.  15.     p.  529. 
Williams  v.  Keokuk  etc.  Packet  Co.,  3 

Cent.  L.  J.  400.     pp.  518,  529. 
Williams  v.  Vanderbilt,  28  N.  Y.  217; 

s.  c.  29  Barb.  491.     pp.  66,  432,  466, 

567. 

C  4  Abb.  App.  Dec.  523 ;  77  N.  C.  352. 


TABLE    OF    CASES    CITED. 


Ixiii 


Williamson  v.  Grand  Trunk  R.  Co.,  17 

Upper  Canada  C.  P.  615.    pp.  374, 

570. 
Willis  V.  Long  Island  R.  Co.,  32  Barb. 

398 ;  s.  c.  34  N.  Y.  670.     pp.  67,  224, 

259,  266. 

c  36  N.  y.  43;  8  Hun,  498;  67  N.  Y.  597;  34 
N.  Y.  675 ;  100  Mass.  215 ;  19  Alb.  L.  J.  472.  d 
51  111.  498,  499. 

Wilson  V.  Brett,  11  Mee.  &  W.  113.    pp. 

41,  178,  398,  574. 
Wilson  V.  Chesapeake  etc.  R.  Co.,  21 

Gratt.  654.     pp.  432,  433,   436,  521, 

527. 
Wilson  V.  Grand  Trunk  R.  Co.,  56  Me. 

60;  s.  c.  8  Am.  L.  Reg.  (n.  s.)  398. 

pp.  510,  521,  522. 
Wilson  V.  Hamilton,  4  Ohio  St.  722.    p. 

387. 
Wilson  V.  Newport  Dock  Co.,  4  Hurl.  & 

Colt.  232;  s.  c.  L.  R.  1  Exch.  177;  12 

Jur.  (N.  s.)  233.     p.  565. 
Wilson  V.  Northern  Pacific  R.  Co.  (Sup. 

Ct.  Minn.  1879),  10  Cent.  L.  J.  56. 

p.  267. 
Wilson  V.  Susquehanna  Turnpike  Co., 

21  Barb.  68.    p.  220. 
Wilt  V.  Welsh,  6  Watts,  9.     p.  542. 
Wilton  V.  Atlantic  etc.  Nav.  Co.,  10  C- 

B.  (N.  S.)  452  ;  S.C.8  Jur.  (x.  s.)  232 ; 

30  L.  J.   (C.  P.)  369;  9  Week.  Rep. 

748;  4  L.  T.    (N.  s.)   706.     pp.471, 

525. 
Wilton  V.  Middlesex  B.  Co.,  107  Mass. 

108.  pp.  44,  293,  345,  439,  440,  455. 
(In  full,  p.  438.) 

c  60  Mo.  416;  28  Ohio  St.  31. 
Winship  v.  Enfield,  42  N.  H.  197.     pp. 

204,  220. 
Winterbottom  v.  Wright,  10  Mee.  &  W. 

109.  p.  41. 

e  11  Allen,  520;  8  El.  &  Bl.  1049,  1052;  17 
Gratt.  239 ;  4  Gray,  102 ;  11  Hun,  357 ;  7  La.  An. 
324 ;  L.  K.  3  C.  F.  496,  497 ;  37  L.  .J.  (C.  P.)  lU ; 
.56  N.  y.  127 ;  1  N.  Y.  S.  C.  (T.  &  C.)  454 ;  38  Pa. 
St.  110;  55  N.  Y.  612;  29  N.  H.  35;  27  Vt.  377;  1 
Phila.  157;  6  N.  Y.  408;  42  Iowa,  2.50;  1  Hilt. 
438,  443;  19  0.  B.  (N.  S.)  238,  243;  11  Jur.  (N. 
s.)  675;  34  L.  J.  (0.  P.)  297,  298;  15  N.  Y.  450. 
AVinters  v.  Hannibal  etc.  R.  Co.,  39  Mo. 

468.  pp.  259,  560,  571. 


Winch  V.  Birkenhead  etc.  R.  Co.,  5  De 

G.  &  Sm.  562;  s.  c.  6  Jur.  1035;  13 

Eug.  Law  &  Eq.  506.     p.  418. 
Withers  v.  North  Kent  R.  Co.,  27  L.  J. 

Exch.  417 ;  s.  c.  at  nisi  prius,  sub  nom. 

Withers  v.  Great  Northern  R.  Co.,  1 

Post.  &  Fin.  165 ;  3  Hurl.  &  N.  969. 

pp.  206,  207,  211,  219. 

c  9  Jur.  (N.  S.)  341. 
Witte  V.  Hague,  2  Dow.  &  Ry.  33.    p. 

222. 
Wolf  V.  Summers,  2  Camp.  631.    pp. 

471,  524. 

c  1  GUp.  190;  1  Hilt.  502;  Abb.  Adm.  5L 
Woodard  v.  Eastern  Counties  R.  Co., 

7  Jur.  (N.  s.)  331 ;  s.  c.  30  L.  J.  (M. 

C.)  126;   9  Week.  Rep.  660;   4  L.  T. 

(N.  s.)  336.     pp.  69,  336. 
Woods  V.  Devin,  13  111.  746.     pp.  513, 

520,  521. 

c  22  111.  214,  281 ;  56  111.  217 ;  10  How.  Pr. 
333. 
Woodward  v.  Aborn,  35  Me.  271.     p. 

220. 
Woodward  v.  Booth,  7  Bam.  &  Cress. 

301.     p.  555. 
Woodward  v.  Chicago  etc.  R.  Co.,  23 

Wis.  400.     p.  549. 

c  29  Gratt.  439. 
Woodward  v.  Washburn,  3  Denio,  369. 

p.  547. 
Wordsworth  v.  Willan,  5  Esp.  273.     p. 

237. 
Wright  V.  Caldwell,  3  Mich.  51.'  p.  471. 
Wright  V.  Indianapolis  etc.  R.  Co.,  18 

Ind.  168.     p.  547. 
Wright  V.  London  etc.  R.  Co.,  L.  R.  10 

Q.  B.  298;  s.  c.  1  Q.  B.  Div.  252.     p. 

106. 
Wright  V.  Midland  R.  Co.,  42   L.  J. 

(Exch.)  89;  s.  c.  L.  R.  8  Exch.  137; 

21  Week.  Rep.  460;  29  L.  T.  (x.  s.) 

436.     pp.  416,  417. 

c  44  L.  J.  (Exoh.)  137;  35  Upper  Canada 
Q  B.  561. 

Wright  V.  Pindar,  Style,  34.     p.  564. 
Wright  V.  Wilcox,  19  Wend.  343.     p. 

358. 
Wyatt  V.  Citizens'  R.  Co.,  55  Mo.  485. 

pp.  228,  268,  563. 

c  2  Cent.  L.  J.  541 ;  59  Mo.  37. 


Ixiv 


TABLE    OF    CASES    CITED. 


Wyborn  v.  Great  Northern  R.  Co.,  1 

Fost.  &  Fin.  162.     p.  206. 

c  27  L.  J.  (Exch.)  419;  3  Hurl.  &  N.  972. 
Wyld  V.  Pickford,  8  Mee.  &  W.  443 

pp.  178,  389,  398. 
Wylde  V.  Northern    R.  Co.,  53  N.  Y. 

156.    p.  437. 
Wynn  v.  AUard,  5  Watts  &  S.  524.    p. 

271. 
Wyman  v.  Penobscot  etc.  R.  Co.,  46 

Me.  162.    p.  418. 

Y. 

Yates  V.  Duff,  5  Car.  &  P.  369.    p.  467. 
Yeomans  v.  Contra  Costa  Steam  Nav. 

Co.,  44  Cal.  71.     pp.  45,  46,  463,  556. 

c  2  Mont.  625 ;  49  Cal.  130 ;  46  Tex.  638. 
York  Co.  V.  Central  R.  Co.,  3  Wall.  113. 

p.  391. 
Yonge  V.  Kinney,  28  Ga.  111.    pp.  211, 

660. 

e  4  OoL  10. 


Yonge  V.  Pacific  Mail  Steamship  Co., 

1  Cal.  353.     pp.  568,  569. 
Young  V.  Black,  7  Cranch,  568.     p.  564. 
Young  V.  Fewson,  8  Car.  &  P.  55.    pp. 

469,  555. 
Yznaza  Del  Valle  v.  The  Richmond,  27 

La.  An.  90. 

z. 

Zell  V.  Arnold,  2  Pa.  St.  295.    pp.  642, 

543. 
Zemp  V.  Wilmington  etc.  R.   Co.,  9 

Rich.  L.  84.     pp.  212,  260,  330,  657, 

562,  563. 
Zenobia    (The),  Abb.  Adm.   48.     pp. 

467,  570. 

c  1  Woods,  412. 
Zunz  V.  South-Eastem  R.  Co.,  10  Best 

&  S.  594 ;  s.c.  L.  R.  4  Q.  B.  539.  p.  526. 

c  36  Upper  Canada  Q.  B.  660;  Irish  £ep. 
10  G.  L.  66. 


CASES 


ON  THE   LAW  OF 


CARRIERS  OF  PASSENGERS. 


CHAPTEE    I. 

OF  THE   OBLIGATION  TO  RECEIVE  AND   CARRY. 


Leading  Cases: 


1.  Bennett  v.  Button.  —  General  obligation   to  receive   and 

carry. 

2.  Vinto7i  V.  Middlesex  Railroad  Company.  —  Not  bound  to 

carry  drunken  persons. 

3.  Thurston  v.  Union  Pacific  Railroad  Company.  —  Not  bound 

to  carry  gamblers  who  seek  to  come  on  board  to  ply 
their  vocation. 

4.  Jencks  v.  Coleman.  —  Not  bound  to  carry  a  drummer  for 

a  rival  line. 
6.  Pearson  v.  Buane.  —  Expulsion  of  a  passenger  exiled  by 

a  vigilance  committee. 
6.  O^Brien  v.  Boston  and  Worcester  Railroad  Company.  —  Not 

bound  to  carry  a  person  who  has  just  been  expelled  for 

good  cause. 


Notes:     §  1.  Who  is  a  common  carrier  of  passengers. 

2.  Duty  of  common  carrier  to  receive  and  carry  passengers. 

3.  What  will   excuse   carrier  from    receiving    and  carrying 

passeii"'('r. 

4.  Want  of  room  will  usually  excuse. 

5.  Payment  of  fare. 

6.  Ejecting  passengers  who  have  been  received. 

1 


OBLIGATION  TO  RECEIVE  AND  CARRY. 


Bennett  v.  Button. 


1.  GENERAL  OBLIGATION  TO  RECEIVE  AND  CARRY. 

Bennett  v.  Dutton.* 
Superior  Court  of  Judicature  of  New  Hampshire,  1839. 

Hon.  Joel  Parker,  Chief  Justice. 
"     Samuel  Green,        ] 
"     Nathan  G.  Upham,  I  Justices. 
"     Leonard  Wilcox,    J 

1.  Obligation  of  Common  Carrier  of  Passengers  to  receive  and  carry.  — The  propri- 
etors of  a  stage-coach  who  hold  themselves  out  as  common  carriers  of  passengers  are 
bound  to  receive  all  who  require  a  passage,  so  long  as  they  have  room  and  there  is  no 
legal  excuse  for  a  refusal.  It  is  not  a  lawful  excuse  that  they  run  their  coach  in  con- 
nection with  another  coach,  which  extends  the  line  to  a  certain  place,  and  have  agreed 
with  the  proprietor  of  such  other  coach  not  to  receive  passengers  who  come  from  that 
place,  on  certain  days,  unless  they  come  in  his  coach. 

9.  Hefusal  to  carry  Passenger  who  proposes  to  take  Passage  with  a  Hival 
Connecting  Line.  —  The  defendant  was  one  of  the  proprietors  and  the  driver  of  a 
stage-coach  running  daily  between  Amherst  and  Nashua  which  connected  at  the 
latter  place  with  another  coach  running  between  Nashua  and  Lowell,  and  thus  formed 
a  continuous  mail  and  passenger  line  from  Lowell  to  Amherst  and  onward  to  Frances- 
town.  A  third  person  ran  a  coach  to  and  from  Nashua  and  Lowell;  and  tlie  defendant 
agreed  with  the  proprietor  of  the  coach  connecting  with  his  line  that  he  would  not 
receive  passengers  who  came  from  Lowell  to  Nashua  in  the  coach  of  such  third  person 
on  the  same  day  they  applied  for  a  passage  to  places  above  Nashua.  The  plaintiff  was 
notified  at  Lowell  of  this  arrangement,  but  notwithstanding  came  from  Lowell  to 
Nashua  in  that  coach  and  then  demanded  a  passage  in  the  defendant's  coach  to  Am- 
herst, tendering  the  regular  fare.  It  was  held  that  the  defendant  was  bound  to  receive 
him,  there  being  sufficient  room,  and  no  evidence  that  the  plaintiff  was  an  unfit  person 
to  be  admitted,  or  that  he  had  any  design  of  injuring  the  defendant's  business. 

Case.  The  declaration  alleged  that  the  defendant  was  part  owner 
and  the  driver  of  a  public  stage-coach  from  Nashua  to  Amherst  and 
Francestown ;  that  on  the  31st  of  January,  1837,  the  plaintiff  applied 
to  him  to  be  received  into  his  coach  at  Nashua,  and  conveyed  from 
thence  to  Amherst,  offering  to  pay  the  customary  fare ;  and  that  the 
defendant,  although  there  was  room  in  his  coach,  refused  to  receive  the 
plaintiff. 

It  appeared  in  evidence  that  at  the  time  of  the  grievance  alleged 
there  were  two  rival  lines  of  daily  stages  running  between  Lowell,  in 
Massachusetts,  and  Nashua ;  that  Jonathan  B.  French  was  the  proprie- 
tor of  one  of  those  lines,  and  Nelson  Tuttle  of  the  other ;  that  Tuttle's 
line  ran  no  farther  than  from  Lowell  to  Nashua ;  that  French  and  the 
proprietors  of  the  defendant's  line  were  interested   in  a  contract  for 

*  Reported  10  N.  11.  481. 


GENERAL  NATURE  OF  THE  OBLIGATION. 


Superior  Court  of  New  Hampshire. 


carrying  the  United  States  mail  from  Lowell  to  Francestown,  through 
Amherst  (dividing  the  mail-money  in  proportion  to  the  length  of  their 
respective  routes),  so  as  to  form  one  continuous  mail  route  from  Lowell 
to  Francestown;  that  French  and  the  proprietors  of  the  defendant's 
line  had  agreed  to  run  their  respective  coaches  so  as  to  form  a  continu- 
ous line  for  passengers  from  Lowell,  through  Amherst,  to  Francestown, 
and  that  their  agents  and  drivers  might  engage  seats  for  the  whole  dis- 
tance at  such  rates  of  fare  as  they  thought  expedient,  and  the  amount 
thus  received,  in  instances  where  they  thought  proper  to  receive  less 
than  the  regular  fare,  was  to  be  divided  between  said  proprietors  in 
proportion  to  the  length  of  their  respective  routes ;  that  it  was  also 
agreed  that  if  the  defendant's  line  brought  down  to  Nashua  an  extra 
number  of  passengers,  French  should  see  them  through,  and  be  at  the 
expense  of  furnishing  extra  coaches  and  horses,  if  necessary,  to  convey 
them  to  Lowell,  and,  on  the  other  hand,  if  French's  line  brought  up  an 
extra  number  of  passengers  from  Lowell  to  Nashua,  the  proprietors  of 
the  defendant's  line  were  to  do  the  same  for  the  conve3'^ance  of  such 
passengers  above  Nashua  ;  and  that  it  was  further  agreed  (as  Tuttle's  line 
ran  no  farther  than  from  Lowell  to  Nashua)  by  the  proprietors  of  the 
'lefendant's  line  that  they  would  not  receive  into  their  coaches,  at 
Nashua,  passengers  for  places  above  Nashua  who  came  up  from  Lowell 
to  Nashua  on  the  same  day  in  Tuttle's  line,  the  time  of  starting  from 
Lowell  and  arriving  at  Nashua  being  the  same  in  both  lines. 

One  of  the  requisitions  of  mail  contracts  is  that  each  line  of  stage- 
coaches running  into  another  so  as  to  foim  a  continuous  mail  line  shall 
give  preference  to  passengers  arriving  in  the  line  with  which  it  connects, 
and  shall  forwai'd  them  in  preference  to  any  others. 
.  There  were  several  other  lines  which  started  from  Lowell  at  the  same 
time  with  the  lines  before  mentioned,  running  to  other  places,  through 
Nashua;  and  it  was  generally  the  understanding  between  their  respective 
proprietors  that  one  line  should  not  take  for  a  part  of  the  distance, 
where  the  route  was  the  same,  passengers  who  were  going  on  furtlier 
in  another  line :  though  this  understanding  had  been  occasionally  inter- 
rupted. 

The  plaintiff  being  at  Lowell  on  the  31st  of  January,  1837,  took 
passage  and  was  conveyed  to  Nasliua  in  Tuttle's  line,  and  immediately' 
on  his  arrival  at  Nashua  applied  to  be  received  into  the  defendant's 
coach,  and  tendered  the  amount  of  the  regular  fare.  There  was  room 
for  the  plaintiff  to  be  conveyed  to  Amherst,  but  the  defendant  refused 
to  receive  him.  The  plaintiff  was  notified  by  the  agent  for  the  line  of 
French  and  the  defendant,  at  Lowell,  pievious  to  taking  passage  in 


OBLIGATION  TO  RECEIVE  AND  CARRY. 


Bennett  v.  Dutton. 


Turtle's  coach  for  Nashua,  that  if  he  wished  to  go  from  Nashua  to 
Amherst  on  that  day  in  the  regular  mail  line  he  must  take  the  mail  line 
at  Lowell,  and  that  if  he  took  passage  in  Tuttle's  line  from  Lowell  to 
Nashua  he  would  not  be  received  at  Nashua  into  the  defendant's 
coach. 

The  parties  agreed  that  judgment  should  be  rendered  for  the  plain- 
tiff for  nominal  damages,  or  for  the  defendant,  according  to  the  opinion 
of  this  court  upon  these  facts. 

Clark  and  G.  Y.  Sawyer,  for  the  plaintiff ;  Baker,  with  C.  G.  AtJierton, 
for  the  defendant. 

Parker,  C.  J. — It  is  well  settled  that  so  long  as  a  common  carrier 
has  convenient  room  he  is  bound  to  receive  and  carry  all  goods  which 
are  offered  for  transportation,  of  the  sort  he  is  accustomed  to  carry,  if 
they  are  brought  at  a  reasonable  time  and  in  a  suitable  condition.  ^ 
And  stage-coaches  which  transport  goods  as  well  as  passengers  are  in 
respect  of  such  goods  to  be  deemed  common  carriers,  and  responsible 
accordingly.^  Carriers  of  passengers  for  hire  are  not  responsible,  in 
all  particulars,  like  common  carriers  of  goods.  They  are  not  insurers 
of  personal  safety  against  all  contingencies  except  those  arising  from 
the  acts  of  God  and  the  public  enemy.  For  an  injury  happening  to 
the  person  of  a  passenger  by  mere  accident,  without  fault  on  their  part, 
they  are  not  responsible,  but  are  liable  only  for  want  of  due  care,  dili- 
gence, or  skill.  This  results  from  the  different  nature  of  the  case. 
But  in  relation  to  the  baggage  of  their  passengers,  the  better  opinion 
seems  to  be  that  they  are  responsible  like  other  common  carriers  of 
goods. 

And  we  are  of  opinion  that  the  proprietors  of  a  stage-coach  for  the 
regular  transportation  of  passengers  for  hire  from  place  to  place  are,  as 
in  the  case  of  common  carriers  of  goods,  bound  to  take  all  passengers 
who  come,  so  long  as  they  have  convenient  accommodations  for  their 
safe  carriage,  unless  there  is  a  sufficient  excuse  for  a  refusal. ^ 

The  principle  which  requires  common  carriers  of  goods  to  take  all 
that  are  offered,  under  the  limitations  before  suggested,  seems  well  to 
apply. 

Like  innkeepers,  carriers  of  passengers  are  not  bound  to  receive  all 
comers."*  The  character  of  the  applicant,  or  his  condition  at  the  time, 
may  furnish  just  grounds  for  his  exclusion.  And  his  object  at  the  time 
may  furnish  a  sufficient  excuse  for  a  refusal;    as,  if  it  be  to  commit 

1  story  on  Bail.  328;  RUey  v.  Home,  5  3  jencks  v.  Coleman,  2  Sumii.  ^l,  post,  p. 
Bing.  217.                                                                       11;  Hollister  v.  Nowlen,  19  Wend.  239. 

2  Story  on  Bail.  32.-,.  4  Markham  v.  Brown,  8  N.  H.  523. 


GENERAL    NATURE    OF    THE    OBLIGATION. 


Superior  Court  of  New  Hampshire. 


an  assault  upon  another  passenger,  or  to  injure  the  business  of  the 
proprietors. 

The  case  shows  the  defendant  to  have  been  a  general  carrier  of 
passengers  for  hire  in  his  stage-coach  from  Nashua  to  Amherst  at 
the  time  of  the  plaintiff's  application.  It  is  admitted  there  was  room  in 
the  coach,  and  there  is  no  evidence  that  he  was  an  improper  person  to 
be  admitted,  or  that  he  came  within  any  of  the  reasons  of  exclusion 
before  suggested. 

It  has  been  contended  that  the  defendant  was  only  a  special  carrier 
of  passengers,  and  did  not  hold  himself  out  as  a  carrier  of  persons 
generally ;  but  the  facts  do  not  seem  to  show  a  holding  out  for  special 
employment.  He  was  one  of  the  proprietors  and  the  driver  of  a  line 
of  stages  from  Nashua  to  Amherst  and  Francestown.  They  held 
themselves  out  as  general  passenger  carriers  between  those  places. 
But,  by  reason  of  their  connection  with  French's  line  of  stages  from 
Lowell  to  Nashua,  they  attempted  to  make  an  exception  of  persons  who 
came  from  Lowell  to  Nashua  in  Tattle's  stage  on  the  same  day  in  which 
they  applied  for  a  passage  for  the  north.  It  is  an  attempt  to  limit  their 
responsibility  in  a  particular  case,  or  class  of  cases,  on  account  of  their 
agreement  with  French. 

It  is  further  contended  that  the  defendant  and  other  proprietors  had 
a  right  to  make  rules  for  the  regulation  of  their  business,  and  among 
them  a  rule  that  passengers  from  Lowell  to  Amherst  and  onward 
should  take  French's  stage  at  Lowell;  and  that  by  a  notice  brought 
home  to  the  individual,  the  general  responsibility  of  the  defendant,  if  it 
existed,  is  limited. 

But  we  are  of  opinion  that  the  proprietors  had  no  right  to  limit  their 
general  responsibility  in  this  manner. 

It  has  been  decided  in  New  York  that  stage-coach  proprietors  are 
answerable  as  common  carriers  for  the  baggage  of  passengers ;  that 
they  cannot  restrict  their  common-law  liability  by  a  general  notice  that 
the  baggage  of  passengers  is  at  the  risk  of  the  owners ;  and  that  if 
a  carrier  can  restrict  his  common-law  liability,  it  can  only  be  by  an 
express  contract.  ^  And  this  principle  was  applied,  and  the  proprietors 
held  liable  for  the  loss  of  a  trunk,  in  a  case  where  the  passenger 
stopped  at  a  place  where  the  stages  were  not  changed,  and  he  permitted 
the  stage  to  proceed  without  any  inquiry  for  his  baggage. ^  However 
this  may  be,  as  there  was  room  in  the  defendant's  coach,  he  could  not 
have  objected  to  take  a  passenger  from  Nashua,   who  applied    there, 

1  Hollister  v.  Nowlen,  19  Wend.  234.  *  Cole  v.  Goodwin,  19  Wend.  251. 


OBLIGATION  TO  RECEIVE  AND  CAKRY. 


Vinton  v.  Middlesex  Railroad  Company. 


merely  because  he  belonged  to  some  other  town.  That  would  furnish 
no  sufficient  reason,  and  no  rule  or  notice  to  that  effect  could  limit  his 
dut3\  And  there  is  as  little  legal  reason  to  justify  a  refusal  to  take  a 
passenger  from  Nashua  merely  because  he  came  to  that  place  in  a 
particular  conveyance.  The  defendant  might  well  have  desired  that 
passengers  at  Lowell  should  take  French's  line,  because  it  connected 
with  his.  But  if  he  had  himself  been  the  proprietor  of  the  stages  from 
Lowell  to  Nashua,  he  could  have  had  no  right  to  refuse  to  take  a 
passenger  from  Nashua  merely  because  he  did  not  see  fit  to  come  to 
that  place  in  his  stage.  It  was  not  for  him  to  inquire  whether  the  plain- 
tiff came  to  Nashua  from  one  town  or  another,  or  by  one  conveyance 
or  another.  That  the  plaintiff  proposed  to  travel  onward  from  that 
place  could  not  injuriously  affect  the  defendant's  business  ;  nor  was  the 
plaintiff  to  be  punished  because  he  had  come  to  Nashua  in  a  particular 
manner. 

The  defendant  had  good  right,  by  an  agreement  with  French,  to  give 
a  preference  to  the  passengers  who  came  in  French's  stage ;  and  as  they 
were  carriers  of  the  mail  on  the  same  route,  it  seems  he  was  bound  so 
to  do,  without  an  agreement.  If  after  the}'  were  accommodated  there 
was  still  room,  he  was  bound  to  carry  the  plaintiff,  without  inquiring  in 
what  line  he  came  to  Nashua. 

Judgment  for  the  plaintiff. 


2.   NOT   BOUND  TO   CARRY  DRUNKEN  PERSONS. 

Vinton  v.  Middlesex  Railroad  Company.* 
Supreme  Judicial  Court  of  Massachusetts,  1865, 

Hon.  George  T.  Bigelow,  Chief  Justice. 
*'     Charles  A.  Dewey, 
"     Ebenezer  R.  Hoar, 

"     Reuben  A.  Chapman,   \  Associate  Justices. 
"     Horace  Gray,  Jr., 
"     James  D.  Colt, 

Not  bound  to  carry  Drunken  Persons.  —  The  conductor  ol  a  street  railway  car  may 
exclude  or  expel  therefrom  a  person  who  by  reason  of  intoxication  or  otherwise 
is  in  such  a  condition  as  to  render  it  reasonably  certain  that  by  act  or  speech  he  will 
become  offensive  or  annoying  to  other  passengers  therein,  altliough  he  has  not  com- 
mitted :!i\'.  ;ict  i>f  offence  or  annoyance. 

*  Reported  11  Allen,  304. 


NOT    BOUND    TO    CARRY    DRUNKEN    PERSONS. 


Supreme  Judicial  Court  of  Massacliusetts. 


Tort  against  a  street  railway  corporation  to  recover  damages  for 
the  act  of  one  of  their  conductors  in  expelling  the  plaintiff  from  a  car 
in  which  he  was  a  passenger. 

At  the  trial  in  the  Superior  Court,  before  Morton,  J.,  it  appeared 
that  the  plaintiff  was  a  passenger  in  one  of  the  defendants'  cars,  and 
was  expelled  by  the  conductor.  There  was  no  evidence  that  any  rule 
oi*  regulation  had  ever  been  adopted  by  the  defendants,  authorizing 
tlieir  conductors  to  expel  passengers  for  any  cause.  The  defendants 
introduced  evidence  tending  to  show  that  at  the  time  of  the  expulsion 
tlie  plaintiff  was  intoxicated,  and  used  loud,  boisterous,  profane,  and 
indecent  language  towards  the  conductor,  and  attempted  to  strike  him, 
and  that  he  was  therefore  expelled.  But  the  evidence  on  this  point 
•was  conflicting.     There  were  four  women  in  the  car  as  passengers. 

The  defendants  requested  the  court  to  instruct  the  jury,  amongst 
other  things,  as  follows:  "If  the  jury  find  that  the  plaintiff  was  in 
the  defendants'  car  in  a  state  of  intoxication,  so  as  reasonably  to 
induce  the  conductor  to  believe  that  the  plaintiff  would  be  an  annoy- 
ance to  the  passengers,  or  if  the  plaintiff  so  conducted,  or  used  boister- 
ous, profane,  or  indecent  language,  naturally  calculated  to  annoy  the 
passengers,  and  persisted  in  so  doing  after  being  requested  to  be  quiet, 
the  conductor  would  be  justified  in  removing  him,  using  no  more 
violence  than  was  necessary  to  effect  his  removal." 

The  judge  declined  so  to  rule,  and  instructed  the  jury  as  follows: 
'*  If  the  plaintiff,  by  reason  of  intoxication  or, otherwise,  was  in  act  or 
language  offensive  or  annoying  to  the  passengers,  the  conductor  had  a 
right  to  remove  him,  using  reasonable  force.  If  the  conductor,  in  the 
performance  of  his  service  as  conductor,  forcibly  removed  the  plaintiff 
without  justifiable  cause,  or  if,  having  justifiable  cause,  he  used  unnec- 
essary and  unreasonalile  violence,  in  kind  or  degree,  in  removing  him, 
the  defendants  are  liaiile." 

The  jury  returned  a  verdict  for  the  plaintiff,  with  $1,000  damages; 
and  the  defendants  alleged  exceptions. 

L.  M.  Child  (L.  Child  with  hira),  for  the  defendants.— It  is  the 
duty  of  the  proprietors  of  steaml)oats  and  railroads,  as  common  carriers 
of  passengers,  to  provide  for  the  quiet  and  comfort  of  their  passengers, 
:uid  to  secure  tliem  from  annoyance,  fright,  and  terror  resulting  from 
tlie  misconduct  of  their  servants  or  of  other  passengers. •     The  dis- 

i  The  ComiTiotuveaUh  v.  Power,  7  Mete.  611;  Pardee  v.  Drew,  25  Wenil.  459;  Pickford 
601  ;  Jencks  v  Coleinan,  2  Sumn.  221,  post,  v.  Grand  Junction  R.  Co.,  8  Mee.  &  W.  372; 
|).  11 ;  Camden  etc.  R.  Co.  v.  Burke,  13  Wend.       Ang.  on  Car.,  §  525. 


OBLIGATION  TO  RECEIVE  AND  CAREY. 


Vinton  v.  Middlesex  Railroad  Company. 


charge  of  this  duty  falls  within  the  scope  of  the  employment  of  the 
conductor  of  a  railroad  car ;  and  if  he  has  good  reason  to  believe  that 
the  other  passengers  cannot  otherwise  be  secured  from  annoyance,  he 
may  remove  a  passenger. 

T.  H.  Siveetser  and  W.  S.  Gardner,  for  the  plaintiff. —  The  conductor 
of  a  car  has  no  right  to  anticipate  that  one  passenger  will  become  an 
annoyance  to  others.  If  there  is  no  annoyance  at  the  time,  and  the 
passenger  is  conducting  himself  properly,  he  cannot  be  removed.  In 
this  case,  the  defendants  did  not  ask  for  an  instruction  that  the  plaintiff 
might  properly  be  put  off  the  car  if  he  annoyed  the  conductor,  or  if  he 
was  intoxicated,  but  that  if  he  was  in  a  state  of  intoxication,  so  as 
reasonably  to  induce  the  conductor  to  believe  that  he  would  be  an 
annoyance,  he  might  be  removed.  But  the  conductor  himself  may  have 
been  intoxicated.  The  ruling  that  was  requested  did  not  provide  that 
the  jury  should  find  that  the  conductor  had  reason  tct  believe  that  fact. 

No  regulations  have  been  established  by  the  defendants,  and  there- 
fore a  passenger  agrees  simply  to  behave  in  a  decent  and  proper  manner. 
If  he  does  so,  he  has  a  right  to  ride ;  he  has  a  license  to  enter  the  car, 
and  a  right  to  stay  there  until  he  does  something  improper.  If  any- 
body undertakes  to  exercise  a  judgment  on  this  subject,  he  must  be 
sure  to  judge  right.  In  this  case  the  defendants  ask  that  if  the  con- 
ductor is  afraid  that  a  passenger  will  do  something  improper  he  may 
expel  him.  If  this  rule  is  adopted,  a  laboring  man,  tired  and  sleepy, 
may  be  ejected  because  the  conductor  thinks  he  is  intoxicated.  In 
some  of  the  cases  cited,  express  rules  of  the  carriers  were  violated. 

BiGELOw,  C.  J.  —  By  the  instructions  under  which  this  case  was  sub- 
mitted to  the  jury,  in  connection  with  the  refusal  of  those  which  were 
asked  for  by  the  defendants,  we  are  led  to  infer  that  the  learned  judge 
who  presided  at  the  trial  was  of  opinion  that  the  defendants  and  their 
duly  authorized  agents  had  no  legal  power  or  authority  to  exclude  or 
expel  from  the  vehicles  under  their  charge  a  passenger  whose  condition 
and  conduct  were  such  as  to  give  a  reasonable  ground  of  belief  that 
his  presence  and  continuance  in  the  vehicle  would  create  inconvenience 
and  disturbance,  and  cause  discomfort  and  annoyance  to  other  passen- 
gers. Such  certainly  were  the  result  and  effect  of  the  rule  of  law  laid 
down  for  the  guidance  of  the  jury  at  the  trial.  We  are  constrained  to 
say  that  we  know  of  no  warrant,  either  in  principle  or  authority,  for 
putting  any  such  limitation  on  the  right  and  authority  of  the  defendants 
as  common  carriers  of  passengers,  or  of  their  servants  acting  within  the 
scope  of  their  employment. 


NOT    BOUND    TO    CARRY    DRUNKEN   PERSONS. 


Supreme  Judicial  Court  of  Massachusetts. 


It  being  conceded,  as  it  must  be  under  adjudicated  cases,  that  the 
defendants,  as  incident  to  the  business  which  they  carried  on,  not  only 
had  the  power  but  were  bound  to  take  all  reasonable  and  proper  means 
to  insure  the  safety  and  provide  for  the  comfort  and  convenience  of 
passengers,  it  follows  that  they  had  a  right,  in  the  exercise  of  this 
authority  and  duty,  to  repress  and  prohibit  all  disorderly  conduct  in 
their  vehicles,  and  to  expel  or  exclude  therefrom  any  person  whose 
conduct  or  condition  was  such  as  to  render  acts  of  imiKopriety,  rude- 
ness, indecency,  or  disturbance  either  inevitable  or  probable.  Certainly 
the  conductor  in  charge  of  the  vehicle  was  not  bound  to  wait  until  some 
overt  act  of  violence,  profaneness,  or  other  misconduct  had  been  com- 
mitted, to  the  inconvenience  or  annoyance  of  other  passengers,  before 
exercising  his  authority  to  exclude  or  expel  the  offender.  The  right 
and  power  of  the  defendants  and  their  servants  to  prevent  the  occur- 
rence of  improper  and  disorderly  conduct  in  a  public  vehicle  is  quite 
as  essential  and  important  as  the  authority  to  stop  a  disturbance  or 
repress  acts  of  violence  or  breaches  of  decorum  after  the}  have  been 
committed  and  the  mischief  of  annoyance  and  disturbance  has  been 
done. 

Indeed  if  the  rule  laid  down  at  the  trial  be  correct,  then  it  would 
follow  that  passengers  in  public  vehicles  must  be  subjected  to  a  certain 
amount  or  degree  of  discomfort  or  insult  from  evil-disposed  persons 
before  the  right  to  expel  them  would  accrue  to  a  carrier  or  his  servant. 
There  would  be  no  authority  to  restrain  or  prevent  profaneness,  inde- 
cency, or  other  breaches  of  decorum  in  speech  or  behavior,  until  it  had 
continued  long  enough  to  become  manifest  to  the  eyes  or  ears  of  other 
passengers.  It  is  obvious  that  any  such  restriction  on  the  operation  of 
the  rule  of  law  would  greatly  diminish  its  practical  value.  Nor  can  we 
see  that  there  is  any  good  reason  for  giving  so  narrow  a  scope  to  the 
authority  of  carriers  of  passengers  and  their  agents  as  was  indicated  in 
the  rulings  at  the  trial.  The  only  objection  suggested  is  that  it  is 
liable  to  abuse  and  may  become  the  instrument  of  oppression.  But  the 
same  is  true  of  many  other  salutary  rules  of  law.  The  safeguard 
against  an  unjust  or  unauthorized  use  of  the  power  is  to  be  found  in 
the  consideration  that  it  can  never  be  properly  exercised  except  in  cases 
where  it  can  be  satisfactorily  proved  that  the  condition  or  conduct  of  a 
person  was  such  as  to  render  it  reasonably  certain  that  he  would  occasion 
discomfort  or  annoyance  to  other  passengers  if  he  was  admitted  into  a 
public  vehicle  or  allowed  longer  to  remain  within  it. 

Exceptions  sustained. 


10  OBLIGATION    TO    KECEIVE    AND    CARRY. 


Thurston  v.  Union  Pacific  Eailroad  Company. 


3.    NOT    BOUND    TO    CAREY    GAMBLERS   WHO    SEEK    TO    COME    ON 

board  to  ply  their  vocation. 
Thurston  v.  Union  Pacific  Railroad  Company.* 

'    United  States  Circuit  Court,  District  of  Nebraska,  1877.* 
Hon.  Elmer  S.  Dundy,  District  Judge. 

'Carrier  may  refuse  to  carry  Gamblers.  —  Gamblers  and  monte-men  whose  purpose  in 
travelling  upon  a  railway  ti-ain  is  to  ply  their  vocation  may  be  excluded.  But  if  after 
such  a  person  has  purchased  a  ticket  the  servants  of  the  company  refuse  to  receive 
him  on  board  the  train,  unless  the  company  tender  back  the  pricQ  of  the  ticket  he  may 
recover  the  same  together  with  costs  of  suit. 

It  was  alleged,  and  not  denied,  that  the  plaintiff  had  purchased  from 
the  road,  for  fifty  cents,  a  ticket  for  crossing  the  river  on  the  transfer 
train,  and  that  when  the  train  was  about  starting  he  attempted  to  board 
it  but  was  prevented.  He  also  purchased,  for  ninety  cents,  from  the 
company  a  ticket  good  on  another  road,  but  was  forcibly  ejected  from 
the  train,  and  obliged  to  remain  in  Omaha  several  days  before  he  could 
safely  get  away,  for  which  he  asked  $5,000  damages.  The  defendant 
admitted  that  the  necessary  force  (but  no  more)  was  used  to  prevent 
his  entering  the  train.  It  was  claimed  that  he  had  been  for  years  a 
notorious  gambler,  —  a  "monte-man,"  so  called, — and  was  then  en- 
gaged in  travelling  on  the  defendant's  road  for  the  purpose  of  plying 
that  calling,  and  was  about  to  enter  the  train  for  that  purpose.  This 
the  defendant  denied.  The  question  was  whether  the  defendant  had 
the  right  to  exclude  gamblers  from  its  trains.  Upon  this  point  the 
charge  of  the  court  is  given  below. 

John  I.  Bedick,  for  the  plaintiff ;  Mr.  Poppleton  and  Mr.  Wakely,  for 
the  defendant. 

Dundy,  J. — The  railway  company  is  bound,  as  a  common  carrier, 
when  not  overcrowded,  to  take  all  proper  persons  who  may  apply  for 
transportation  over  its  line,  on  their  complying  with  all  reasonable  rules 
of  the  company.  But  it  is  not  bound  to  carry  all  persons  at  all  times, 
or  it  might  be  utterly  unable  to  protect  itself  from  ruin.  It  would  not 
be  obliged  to  carry  one  whose  ostensible  business  might  be  to  injure 
the  line  ;  one  fleeing  from  justice  ;  one  going  upon  the  train  to  assault 
a  passenger,  commit  larceny  or  robbery,  or  for  the  purpose  of  inter- 
fering with  the  proper  regulations  of  the  company,  or  for  gambling  in 
any  form,  or  committing  any  crime ;  nor  is  it  bound  to  carry  persons 

*  Reported  4  Dill.  321. 


NOT    BOUND    TO    CARRY    GAMBLERS.  11 

United  States  Circuit  Court,  Nebraska. 

infected  with  contagious  diseases,  to  the  danger  of  other  passengers. 
The  person  must  be  upon  lawful  and  legitimate  business.  HencS 
defendant  is  not  bound  to  carry  persons  who  travel  for  the  purpose 
of  gambling.  As  gambling  is  a  crime  under  the  State  laws,  it  is  not 
even  necessary  for  the  company  to  have  a  rule  against  it.  It  is  not 
bound  to  furnish  facilities  for  carrying  out  an  unlawful  purpose.  Neces- 
sary force  may  be  used  to  prevent  gamblers  from  entering  trains ;  and 
if  found  on  them  engaged  in  gambling,  and  refusing  to  desist,  they 
may  be  forcibl}-  expelled. 

Whether  the  plaintiff  was  going  upon  the  train  for  gambling  purposes, 
or  whether  from  his  previous  course  the  defendant  might  reasonably 
infer  that  such  was  his  purpose,  is  a  question  of  fact  for  the  jury.  If 
they  find  such  to  have  been  the  case,  they  cannot  give  judgment  for 
any  more  than  the  actual  damage  sustained. 

After  the  ticket  is  purchased  and  paid  for,  the  railroad  company  can 
only  avoid  compliance  with  its  part  of  the  contract  by  the  existence  of 
some  legal  cause  or  condition  which  will  excuse  it.  The  company 
should,  in  the  first  case,  refuse  to  sell  tickets  to  persons  whom  it 
desires  and  has  the  right  to  exclude  from  the  cars,  and  should  exclude 
tiiem  if  they  attempt  to  enter  the  car  without  tickets.  If  the  ticket  has 
been  inadvertently  sold  to  such  person,  and  the  company  desires  to 
rescind  the  contract  for  transportation,  it  should  tender  the  return  of  the 
money  paid  for  the  ticket.  If  it  does  not  do  this,  plaintiff  may,  under 
any  circumstances,  recover  the  amount  of  his  actual  damage,  viz.,  what 
he  paid  for  the  ticket,  and  perhaps  necessary  expenses  of  his  detention. 

In  this  case  the  jury  rendered  a  verdict  for  actual  damages  ($1.74) 
and  costs,  the  company  not  having  tendered  the  money. 

Judgment  on  verdict. 


4.  NOT  BOUND  TO  CARRY  A  DRUMMER  FOR  A  RIVAL  LINE. 

Jencks  V.  Coleman.* 
Circuit  Court  of  the  United  Stdtes,  Rhode  Island,  1835. 

Hon.  Joseph  Story,  Associate  Justice  of  the  Supreme  Court. 
"     .John  Pitmax,  District  Judge. 

1.  No  Obligation  to  carry  a  Drummer  for  a  Rival  Line. —  Whilst  the  proprietors 
of  a  steamboat  carrying  passengers  for  hire  are  bound  as  common   ca.tTier»,  i(   they 

*  Reported  2  Sumn.  221. 


12  OBLIGATION  TO  RECEIVE  AND  CARRY. 


Jencks  v.  Coleman. 


have  suitable  accommodations,  to  receive  on  board  and  carry  all  persons  to  whose 
character  and  conduct  there  is  no  reasonable  objection,  yet  they  are  under  no  obliga- 
tion to  receive  and  carry  one  who  seeks  to  come  on  board  for  the  purpose  of  soliciting 
patronage  for  a  rival  line. 

2.  Case  in  Judgment.  — The  plaintiff  was  the  known  agent  of  the  Treraont  line  of  stage- 
coaches; the  proprietors  of  the  steamboat  Benjamin  Franklin  had,  as  he  well  knew, 
entered  into  a  contract  with  the  Citizens'  Stage-Coach  Company  to  carry  passengers 
•  between  Boston  and  Providence  in  connection  with  and  to  meet  the  steamboats.  The 
plaintiff  had  been  in  the  habit  of  coming  on  board  the  steamboat  at  Providence  and 
Newport  for  the  pui'pose  of  soliciting  passengers  for  the  Tremont  line.  It  was  held  that 
if  the  jury  should  be  of  opinion  that  the  above  contract  was  reasonable  and  bond  fide, 
and  not  entered  into  for  the  purpose  of  an  oppressive  monopoly,  and  that  the  exclusion 
of  the  plaintiff  was  a  reasonable  regulation  in  order  to  carry  this  contract  into  effect, 
the  proprietors  of  the  steamboat  would  be  justified  in  refusing  to  take  the  plaintiff  on 
board. 

Case,  for  refusing  to  take  the  plaintiff  on  board  of  the  steamboat 
Benjamin  Franklin  (of  which  the  defendant  was  commander)  as  a 
passenger  from  Providence  to  Newport.     Plea,  the  general  issue. 

The  facts,  as  they  appeared  at  the  trial,  were  substantialh'  as  follows : 
That  the  plaintiff  was  the  agent  of  the  Tremont  line  of  stages  running 
between  Providence  and  Boston ;  that  his  object  was  to  take  passage  in 
the  boat  to  Newport,  and  then  go  on  board  the  steamboat  President, 
on  her  passage  from  New  York  to  Providence,  on  the  next  morning,  for 
the  purpose  of  soliciting  passengers  for  the  Tremont  line  of  stages  for 
Boston.  This  the  proprietors  of  the  President  and  Benjamin  Franklin 
had  prohibited,  and  had  given  notice  that  they  would  not  permit  agents 
of  that  line  of  stages  to  take  passage  in  their  boats  for  that  purpose. 
The  reason  assigned  for  such  prohibition  was  that  it  was  important  for 
the  proprietors  of  the  steamboats  that  the  passengers  from  their  boats 
for  Boston  should  find  at  all  times,  on  their  arrival  at  Pro%idence, 
an  immediate  and  expeditious  passage  to  Boston.  To  insure  this 
object,  the  Citizens'  Coach  Company  had  contracted  with  the  steamboat 
proprietors  to  carry  all  the  passengers  who  wished  to  go,  in  good 
carriages  at  reasonable  expedition  and  prices ;  and  the  commanders 
of  the  steamboats  were  to  receive  the  fare  and  make  out  way-bills  of 
the  passengers  for  the  Citizens'  Coach  Company.  This  they  continued 
to  perform.  And  in  order  to  counteract  the  effect  of  this  contract, 
which  had  been  offered  the  Tremont  line  and  declined,  that  line 
placed  an  agent  on  board  the  boats  to  solicit  passengers  for  their 
coaches  ;  and  on  being  complained  to  by  the  Citizens'  Coach  Company, 
the  proprietors  of  the  steamboats  interdicted  such  agents  from  coming 
on  board  their  boats,  and  in  this  instance  refused  to  permit  the 
plaintiff  to  take  passage  in  the  boat  for  Newport  though  he  tendered 
the  customary  fare. 


NOT    BOUND    TO    CARRY    RIVAL    DRUMMERS.  13 

United  States  Circuit  Court,  Rhode  Island. 

The  cause  was  argued  by  R.  W.  Greene  and  Daniel  Webster  for  the 
plaintiff,  and  by  Rivers  and  Whipple  for  the  defendants. 

For  the  plaintiff,  it  was  contended  that  steamboat  proprietors  were 
common  carriers,  and  every  person  conducting  himself  with  propriety 
had  a  right  to  be  carried  unless  he  had  forfeited  that  right.  The 
plaintiff,  in  this  instance,  did  conduct  himself  with  propriety,  and  had 
not  forfeited  his  right  to  be  carried,  by  any  improper  misconduct.  The 
steamboat  proprietors  and  Citizens'  Coach  Company  had  attempted  to 
estabUsh  a  monopoly,  which  should  not  be  countenanced,  it  being 
against  the  public  interest.  Such  a  monopoly  operated  to  increase  the 
price  and  prolong  the  time  of  passage  from  Providence  to  Boston ; 
while  open  competition  promoted  the  public  interest  and  convenience, 
by  reducing  the  fare  and  expediting  the  passage.  The  plaintiff,  in  this 
instance,  requested  to  be  conveyed  from  Providence  to  Newport ;  during 
which  passage,  it  was  well  known,  no  passengers  were  to  be  solicited,  — 
that  was  to  be  done  onl}'  on  the  passage  from  Newport  to  Providence. 
For  the  defendant,  it  was  contended  that  the  contract  made  by  the 
steamboat  proprietors  and  the  Citizens'  Company  was  legal,  and 
subserved  the  public  convenience  and  the  interests  of  the  proprietors 
of  the  boats  and  stages ;  it  insured  to  the  passengers  expeditious 
passages  at  reasonable  prices ;  that  the  regulation  excluding  the  agents 
of  the  Tremont  line  of  stages  from  the  steamboats  was  legal  and  just, 
because  it  was  necessary  to  promote  the  foregoing  objects,  to  wit,  the 
public  convenience  and  the  interests  of  the  proprietors  of  both  the 
l)oats  and  stages.  Of  this  interdiction  the  plaintiff  had  received 
notice,  and  had  no  legal  right  to  complain. 

Story,  J.,  in  summing  up  to  the  jur}^  after  recapitulating  the  evi- 
dence, said :  There  is  no  doubt  that  this  steamboat  is  a  common  carrier 
of  passengers  for  hire ;  and  therefore  the  defendant,  as  commander,  was 
bound  to  take  the  plaintiff  as  a  passenger  on  board,  if  he  had  suitable 
accommodations  and  there  was  no  reasonable  objection  to  the  character 
or  conduct  of  the  plaintiff.  The  question,  then,  really  resolves  itself 
into  the  mere  consideration  whether  there  was  in  the  present  case, 
upon  the  facts,  a  reasonable  ground  for  the  refusal.  The  right  of 
passengers  to  a  passage  on  board  of  a  steamboat  is  not  an  unlimited 
right.  But  it  is  subject  to  such  reasonable  regulations  as  the  proprietors 
may  prescribe,  for  the  due  accommodation  of  passengers  and  for  the 
due  arrangements  of  their  business.  The  proprietors  have  not  only 
this  right,  but  the  further  right  to  consult  and  provide  for  their  own 
interests  in  the  management  of  such  boats,  as  a  common  incident  to 


14  OBLIGATION    TO    RECEIVE    AND    CARRY. 

Jencks  v.  Coleman. 

theii-  right  of  property.  They  are  not  bound  to  admit  passengers  on 
board  who  refuse  to  obey  the  reasonable  regulations  of  the  boat,  or 
who  are  guilty  of  gross  and  vulgar  habits  of  conduct ;  or  who  make 
disturbances  on  board ;  or  whose  characters  are  doubtful,  or  dissolute, 
or  suspicious ;  and,  a  fortiori,  whose  characters  are  unequivocally  bad. 
Nor  are  they  bound  to  admit  passengers  on  board  whose  object  it  is  to 
interfere  with  the  interests  or  patronage  of  the  proprietors,  so  as  to 
make  the  business  less  lucrative  to  them. 

While,  therefore,  I  agree  that  steamboat  proprietors,  holding  them- 
selves out  as  common  carriers,  are  bound  to  receive  passengers  on  board 
under  ordinary  circumstances,  I  at  the  same  time  insist  that  they 
may  refuse  to  receive  them  if  there  be  a  reasonable  objection.  And 
as  passengers  are  bound  to  obey  the  orders  and  regulations  of  the 
proprietors,  unless  they  are  oppressive  and  grossly  unreasonable,  who- 
ever goes  on  board,  under  ordinary  circumstances,  impliedly  contracts 
to  obey  such  regulations,  and  may  justly  be  refused  a  passage  if  he 
wilfully  resists  or  violates  them. 

Now,  what  are  the  circumstances  of  the  present  case?  Jencks  (the 
plaintiff)  was  at  the  time  the  known  agent  of  the  Tremont  line  of  stage- 
coaches. The  proprietors  of  the  Benjamin  Franklin  had,  as  he  well 
knew,  entered  into  a  contract  with  the  owners  of  another  line  (the  Citi- 
zens' Stage- Coach  Company)  to  bring  passengers  from  Boston  to 
Providence,  and  to  carry  passengers  from  Providence  to  Boston,  in 
connection  with  and  to  meet  the  steamboats  plying  between  New  York 
and  Providence  and  belonging  to  the  proprietors  of  the  Franklin.  Such 
a  contract  was  important,  if  not  indispensable,  to  secure  uniformity, 
punctuality,  and  certainty  in  the  carriage  of  passengers  on  both  routes, 
and  might  be  material  to  the  interests  of  the  proprietors  of  those  steam- 
boats. Jencks  had  been  in  the  habit  of  coming  on  board  these  steam- 
boats at  Providence  and  going  therein  to  Newport ;  and  commonly  of 
coming  on  board  at  Newport  and  going  to  Providence,  avowedly  for 
the  purpose  of  soliciting  passengers  for  the  Tremont  line,  and  thus 
interfering  with  the  patronage  intended  to  be  secured  to  the  Citizens' 
line  by  the  arrangements  made  with  the  steamboat  proprietors.  He 
had  the  fullest  notice  that  the  steamboat  proprietors  had  forbidden  any 
person  to  come  on  board  for  such  purposes,  as  incompatible  with  their 
interests.  At  the  time  when  he  came  on  board  as  in  the  declaration 
mentioned,  there  was  every  reason  to  presume  that  he  w^as  on  board  for 
his  ordinary  purposes  as  agent.  It  has  been  said  that  the  proprietors 
had  no  right  to  inquire  into  his  intent  or  motives.     I  cannot  admit  that 


NOT    BOUND    TO    CARRY    RIVAL    DRUMMERS.  IS' 

United  States  Circuit  Court,  Rhode  Island. 

point.  I  think  that  the  proprietors  had  a  right  to  inquire  into  such 
intent  and  motives,  and  to  act  uppn  the  reasonable  presumptions  which 
arose  in  regard  to  them.  Suppose  a  known  or  suspected  thief  were  to 
come  on  board,  would  they  not  have  a  right  to  refuse  him  a  passage? 
Might  they  not  justly  act  upon  the  presumption  that  his  object  was 
unlawful?  Suppose  a  person  were  to  come  on  board  who  was  habitu- 
ally drunk,  and  gross  in  his  behavior  and  obscene  in  his  language,  so 
as  to  be  a  public  annoyance,  might  not  the  proprietors  refuse  to  allow 
him  a  passage?  I  think  they  might,  upon  the  just  presumption  of  what 
his  conduct  would  be. 

It  has  been  said  by  the  learned  counsel  for  the  plaintiff  that  Jencks 
was  going  from  Providence  to  Newport,  and  not  coming  back  ;  and  that, 
in  going  down,  there  would,  from  the  very  nature  of  the  object,  be  no 
solicitation  for  passengers.  That  does  not  necessarily  follow ;  for  he 
might  be  engaged  in  making  preliminary  engagements  for  the  return  of 
some  of  them  back  again.  But  supposing  there  were  no  such  solic- 
itations, actual  or  intended,  I  do  not  think  the  case  is  essentially 
changed.  I  think  that  the  proprietors  of  the  steamboats  were  not 
bound  to  take  a  passenger  from  Providence  to  Newport  whose  object ' 
was,  as  a  stationed  agent  of  the  Tremont  line,  thereby  to  acquire  facil- 
ities to  enable  him  successfully  to  interfere  with  the  interests  of  these 
proprietors,  or  to  do  them  an  injury  in  their  business.  Let  us  take  the 
case  of  a  ferryman.  Is  he  bound  to  carry  a  passenger  across  a  ferry, 
whose  object  it  is  to  commit  a  trespass  upon  his  lands  ?  A  case  still  more 
strongly  in  point,  and  which,  in  my  judgment,  completely  meets  the  pres- 
ent, is  that  of  an  innkeeper.  Suppose  passengers  are  accustomed  to 
breakfast,  or  dine,  or  sup,  at  his  house,  and  an  agent  is  employed  by  a 
rival  house,  at  the  distance  of  a  few  miles,  to  decoy  the  passengers 
away  the  moment  they  arrive  at  the  inn ;  is  the  innkeeper  bound  to 
entertain  and  lodge  such  agent,  and  thereby  enable  him  to  accomplish 
the  very  objects  of  his  mission,  to  the  injury  or  ruin  of  his  own  interests? 
I  think  not. 

It  has  been  also  said  that  the  steamboat  proprietors  are  bound  to 
carry  passengers  only  between  Providence  and  New  York,  and  not  to 
transport  them  to  Boston.  Be  it  so,  that  they  are  not  absolutely  bound. 
Yet  they  have  a  right  to  make  a  contract  for  this  latter  purpose,  if  they 
clioose ;  and  especially  if  it  will  facilitate  transportation  of  passengers, 
and  increase  the  patronage  of  their  steamboats.  I  do  not  say  that  they 
have  a  right  to  act  oppressively  in  such  cases.  But  certainly  they  may 
in  good  faith  make  such  contracts,  to  promote  their  own  as  well  as  the 
pubUc  interests. 


16  OBLIGATION    TO    RECEIVE    AND    CARRY. 

Jencks  v.  Coleman. 

The  only  real  question,  then,  in  the  present  case,  is  whether  the  con. 
duct  of  the  steamboat  proprietors  has  been  reasonable  and  bond  fide. 
The}^  have  entered  into  a  contract  with  the  Citizens'  line  of  coaches 
to  carry  all  their  passengers  to  and  from  Boston.  Is  this  contract  reason- 
able in  itself,  and  not  designed  to  create  an  oppressive  and  mischievous 
monopoly?  There  is  no  pretence  to  say  that  any  passenger  is  bound  to 
go  to  or  from  Boston  in  the  Citizens'  line.  He  may  act  as  he  pleases. 
It  has  been  said  by  the  learned  counsel  for  the  plaintiff  that  free  com- 
petition is  best  for  the  public.  But  that  is  not  the  question  here.  Men 
may  reasonably  differ  from  each  other  on  that  point.  Neither  is  the 
question  here  whether  the  contract  with  the  Citizens'  line  was  indis- 
pensable, or  absolutely  necessary,  in  order  to  insure  the  carriage  of  the 
passengers  to  and  from  Boston.  But  the  true  question  is  whether  the 
contract  is  reasonable  and  proper  in  itself,  and  entered  into  with  good 
faith,  and  not  for  the  purpose  of  an  oppressive  monopoly.  If  the  jury 
find  the  contract  to  be  reasonable  and  proper  in  itself,  and  not  oppres- 
sive, and  they  believe  the  purpose  of  Jencks  in  going  on  board  was  to 
accompHsh  the  objects  of  his  agency,  and  in  violation  of  the  reasonable 
regulations  of  the  steamboat  proprietors,  then  their  verdict  ought  to  be 
for  the  defendant ;  otherwise,  for  the  plaintiff. 

Webster,  for  the  plaintiff,  then  requested  the  court  to  charge  that 
"  the  jury  must  be  satisfied  that  this  agreement  was  necessary  or  clearly 
expedient  for  the  public  interest  and  the  interest  of  the  proprietors  of 
the  boats,  or  otherwise  the  captain  of  the  boat  could  not  enforce  it 
by  refusing  the  plaintiff  a  passage ;  or,  that  the  defendant  must 
show  that  the  substantial  interest  of  the  proprietors,  or  of  the  public, 
required  an  arrangement  such  as  that  they  entered  into,  in  order  to  jus- 
tify their  refusal  to  carry  the  plaintiff  for  the  cause  assigned." 

The  court  refused  to  give  instruction  in  the  manner  and  form  as 
prayed ;  but  did  instruct  the  jury  that  it  is  not  necessary  for  the  de- 
fendant to  prove  that  the  contract  in  the  case  was  necessary  to  accom- 
plish the  objects  therein  stated,  but  it  is  sufficient  if  it  was  entered 
into  by  the  steamboat  proprietors  bond  fide,  and  purely  for  the  purpose 
of  their  own  interest  and  the  accommodation  of  the  public,  from  their 
belief  of  its  necessity  or  its  utility.  If  the  jury  should  be  of  opinion 
that  under  all  the  circumstances  of  the  case  it  was  a  reasonable  con- 
tract, and  the  exclusion  of  the  plaintiff  was  a  reasonable  and  proper 
regulation  to  carry  it  into  effect  on  the  part  of  the  steamboat  proprie- 
tors, then  their  verdict  ought  to  be  in  favor  of  the  defendant ;  otherwise, 
in  favor  of  the  plaintiff. 

Verdict  for  defendant. 


Associate  Justices. 


PASSENGER    EXILED    BY    VIGILANCE    COMMITTEE.  17 

Quantum  of  Damages. 

5.   EXPULSION   OF  PASSENGER  EXILED  BY  VIGILANCE  COMMITTEE. 

Pearson  v.  Duane.* 

Supreme  Court  of  the  United  States,  1866. 

Hon.  Salmon  Portland  Chase,  Chief  Justice. 

"  James  M.  Wayne, 

**  Robert  Cooper  Grier, 

"  Noah  H.  Swayne, 

"  David  Davis, 

"  Samuel  Nelson, 

"  Nathan  'Clifford, 

"  Samuel  F.  Miller, 

"  Stephen  J.  Field, 

1.  Kefasal  of  Ship-master  to  carry  Passenger.  —  The  llbellant  was  expelled  from 

the  city  of  San  Francisco  by  a  Vigilance  Committee,  and  was  forcibly  put  on  board 
an  outgoing  steamer  and  landed  at  the  Mexican  port  of  Acapulco.  With  the  deter- 
mination of  returning  to  San  Francisco  in  defiance  of  the  Vigilance  Committee,  he 
got  on  board  a  steamer  destined  for  that  port,  of  which  the  respondent  was  master. 
After  the  steamer  had  put  to  sea,  his  identity  and  the  fact  of  his  exi)ulsion  from  San 
Francisco  were  discovered,  and  the  respondent,  with  a  view  of  preventing  him  from 
aeturning  to  San  Francisco,  believing  that  he  would  be  killed  by  the  Vigilance  Com- 
mittee if  he  returned,  put  him  on  board  another  steamer,  which  again  landed  liira 
at  Acapulco.  It  was  held  that,  having  been  permitted  to  go  upon  the  respondent's 
vessel  without  objection,  and  having  tendered  his  fare  and  otherwise  demeaned  him- 
self properly,  the  respondent  could  not  lawfully  refuse  to  carry  him,  and  that  he  was 
entitled  to  recover  damages;  although  it  seems  that  the  respondent  might  have 
refused  to  receive  him  on  board  the  ship  before  it  sailed. 

2.  Quantum  of  Damages. — Under  such  circumstances,  it  was  held  that  the  libellant 

was  entitled  to  recover  only  such  damages  as  might  be  reasonably  supposed  to  have 
flowed  immediately  from  the  act  of  the  respondent  in  expelling  him  from  his  vessel, 
and  not  those  remote  damages  which  grew  out  of  his  subsequent  wanderings  and 
sutferings.  Accordingly  an  award  of  $4,000  damages  made  by  the  court  below  was 
reduced  to  $50. 

In  the  month  of  June,  1856,  the  steamship  Stevens,  a  common  carrier 
of  passengers,  of  which  Pearson  was  master,  on  her  regular  voyage 
from  Panama  to  San  Francisco,  arrived  at  the  intermediate  port  of 
Acapulco,  where  Duane  got  on  board  with  the  intention  of  proceeding 
to  San  Francisco.  He  had  shortly  before  this  been  banished  from 
tliat  city  by  a  revolutionary  yet  powerful  and  organized  body  of  men, 
called  "The  Vigilance  Committee  of  San  Francisco,"  upon  penalty  of 
death  in  case  of  return.  This  committee  had,  in  the  forepart  of  June, 
against  his  will,  placed  him  on  the  Golden  Age,  a  steamer  in  the  harbor 

•  Reported  4  Wall.  605. 


18  OBLIGATION    TO    RECEIVE    AND    CARRY. 

Pearson  v.  Duane. 

of  San  Francisco  destined  for  Panama,  with  directions  that  he  should 
be  conveyed  beyond  the  limits  of  California;  and  he  was  forcibly 
carried  to  the  Mexican  port  of  Acapulco.  The  presence  of  the  Stevens 
afforded  the  first  opportunity  to  get  back,  which  he  was  anxious  to 
embrace,  being  willing  to  encounter  the  risk  to  which  his  return  might 
expose  him.  Duane  went  openly  on  the  boat,  at  the  public  gangway, 
and  talked  freely  with  some  of  the  officers  and  passengers.  It  is  not 
certain  that  the  master  knew  of  his  being  aboard  until  after  the  ship  go' 
to  sea,  but  no  directions  had  been  given  for  his  exclusion ;  and 
although  he  was  without  a  ticket,  or  money  to  buy  one,  yet  a  passengei 
who  had  the  means  offered  to  pay  the  purser  his  fare,  who  declined 
receiving  it. 

It  was  usual  for  those  persons  who  wished  to  secure  a  passage  to 
procure  a  ticket  at  Acapulco,  but  there  was  no  imperative  rule  of  the 
si  lip  requiring  it,  and  the  customary  fare  was  often  paid  to  the  purser 
after  the  boat  had  left  the  port. 

There  was  no  evidence  that  Duane  would  have  been  excluded  had  the 
master  been  aware  that  he  was  on  board  before  he  left  Acapulco,  for  it 
was  quite  clear  that  the  circumstances  of  his  banishment  were  unknown 
at  that  time. 

The  master,  Pearson,  was  aware  that  the  Vigilance  Committee  were 
in  control  of  San  Francisco,  and  ascertained  in  some  way  that  Duane 
had  been  expelled  by  them  from  California,  and  if  he  returned  would 
be  in  danger  of  losing  his  life.  Having  learned  this,  he  resolved  to  put 
Duane  aboard  the  first  ship  he  met,  and  send  him  back  to  Acapulco. 
The  steamer  Sonora,  commanded  by  Capt.  Whiting,  and  one  of  the 
same  line  of  steamers  of  which  Pearson  was  master,  very  soon  came  in 
sight  and  was  stopped.  Whiting  informed  Pearson  that  he  had  orders 
not  to  carry  back  any  banished  person,  and  that  Duane  would  certainly 
he  executed  if  he  returned,  and  advised  that  he  should  be  sent  to  the 
Sonora,  and  he  would  endeavor  to  persuade  him  to  go  on  witli  him. 

Thereupon  Duane  was  transferred  to  the  Sonora,  and  landed  at 
Acapulco.  The  transfer  was  effected  without  any  personal  indignit}'-  to 
Duane,  who  at  first  resisted,  but  was  induced  to  yield  to  superior  force 
by  friendly  counsels. 

Duane  did  not  retuin  to  California  until  the  month  of  February, 
1860.  The  Vigilance  Committee  no  longer  existed  ;  and  he  then  filed  a 
libel  in  admiralty  for  damages,  in  the  District  Court  of  the  Northern 
District  there,  setting  forth  essentially  the  facts  above  stated ;  that 
having  been  expelled  as  he  was  from  the  Stevens,  all  efforts  to  get 
aboard  vessels  going  to  San  Francisco  were  unavailing ;   that  he  went 


PASSENGER    EXILED    BY    VIGILANCE    COMMITTEE.  19 

Supreme  Court  of  the  United  States. 

thence  to  Aspinwall,  in  the  Republic  of  New  Grenada,  to  try  and  get 
passage  thence  to  San  Francisco,  but  that  a  Une  of  steamers  previously 
existing  there,  and  on  which  he  expected  to  go,  had  been  discontinued, 
its  last  vessel  having  set  off  two  or  three  days  before  his  arrival ;  that 
finally,  through  charity,  he  obtained  a*passage  to  New  York,  in  which 
city  he  was  without  money  or  means,  his  character  and  reputation 
blasted,  and  himself  a  dependent  on  chai-ity  for  subsistence ;  and  was 
for  several  months  confined  in  the  hospital  there,  ph^'sically  unable  to 
attempt  the  voyage  to  San  Francisco  until  February,  1860. 

By  the  twelfth  article  of  his  libel,  he  assigned  as  a  reason  for  delay  in 
bringing  his  action  the  state  of  things  in  San  Francisco,  the  numerous 
executions  there  by  the  Vigilance  Committee,  and  his  own  belief  that  if 
he  returned  his  life  would  be  put  in  jeopardy,  —  a  belief  which,  he 
alleged,  "existed  up  to  the  time  of  his  departure  from  New  York  to 
Cahfornia." 

The  answer,  besides  a  defence  from  lapse  of  time,  asserted  that  the 
libellant  was  not  "  a  good  or  law-abiding  citizen  of  San  Francisco;  " 
and  that  he  had  "  secretly,  and  without  any  right  or  authority  so  to  do, 
got  on  board  of  the  Stevens,  and  remained  secreted  on  board  as  a  stow- 
away; "  and  that  the  defendant,  in  sending  the  libellant  back  on  the 
Sonora,  had  been  influenced  by  humane  motives. 

The  District  Court  decreed  in  favor  of  Duane,  with  $4,000  damages ; 
a  decree  affirmed  in  the  Circuit  Court.     Appeal. 

Messrs.  Lyon  and  Alexander  Hamilton,  Jr. ,  for  the  appellant ;  Mr. 
Ashton,  for  the  appellee. 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court.  —  This  case  is 
interesting,  because  of  certain  novel  views  which  this  court  is  asked 
to  sustain.  Two  questions  arise  in  it:  First,  "Was  the  conduct  of 
Pearson  justifiable  ?  Second,  If  not,  what  should  be  the  proper 
measure  of  damages?  It  is  contended,  as  the  life  of  Duane  was  in 
imminent  peril  in  case  of  his  return  to  San  Francisco,  that  Pearson 
was  justified,  in  order  to  save  it,  in  excluding  him  from  his  boat,  not- 
withstanding Duane  was  willing  to  take  his  chances  of  being  hanged  by 
the  Vigilance  Committee.  Such  a  motive  is  certain!}^  commendable  for 
its  humanity,  and  goes  very  far  to  excuse  the  transaction,  but  does  not 
justify  it.  Common  carriers  of  passengers,  like  the  steamship  Stevens, 
are  obliged  to  carry  all  passengers  who  apply  for  passage,  if  the  accom- 
modations are  sufficient,  unless  there  is  a  proper  excuse  for  refusal.^ 

1  Jencks  v.  Coleman,  2  Sumn.  221,  ante,  p.  11 ;  Bennett  v.  Button,  10  N.  H.  486,  ante,  p.  2. 


20  OBLIGATION  TO  RECEIVE  AND  CARRY. 


Pearson  v.  Duane. 


If  there  are  reasonable  objections  to  a  proposed  passenger,  the  car- 
rier is  not  required  to  take  him.  In  this  case,  Duane  could  have  been 
well  refused  a  passage  when  he  first  came  on  board  the  boat,  if  the  cir- 
cumstances of  his  banishment  would,  in  the  opinion  of  the  master,  have 
tended  to  promote  further  difficulty  should  he  be  returned  to  a  city 
wliere  lawless  violence  was  supreme. 

But  this  refusal  should  have  preceded  the  sailing  of  the  ship.  After 
the  ship  had  got  to  sea  it  was  too  late  to  take  exceptions  to  the  char- 
acter of  a  passenger,  or  to  his  peculiar  position,  provided  he  violated  no 
inflexible  rule  of  the  boat  in  getting  on  board.  This  was  not  done  ;  and 
the  defence  that  Duane  was  a  "  stowaway,"  and  therefore  subject  to 
expulsion  at  any  time,  is  a  mere  pretence,  for  the  evidence  is  tlear  that 
he  made  no  attempt  to  secrete  himself  until  advised  of  his  intended 
transfer  to  the  Sonora.  Although  a  railroad  or  steamboat  company  can 
properly  refuse  to  transport  a  drunken  or  insane  man,  or  one  whose 
character  ^s  bad,  they  cannot  expel  him  after  having  admitted  him  as  a 
passenger  ^nd  received  his  fare,  unless  he  misbehaves  during  the 
journey. 1  Duane  conducted  himself  properly  on  the  boat  until  his 
expulsion  was  determined,  and  when  his  fare  was  tendered  to  the 
purser  he  was  entitled  to  the  same  rights  as  other  passengers.  The 
refusal  to  carry  him  was  contrar}'  to  law,  although  the  reason  for  it  was 
a  humane  one.  The  apprehended  danger  mitigates  the  act,  but  affords 
no  legal  justification  for  it. 

But  the  sum  of  $4,000  awarded  as  damages,  in  this  case,  is  exces- 
sive, bearing  no  proportion  to  the  injury  received.  Duane  is  entitled 
to  compensation  for  the  injury  done  him  by  being  put  on  board  the 
Sonora,  so  far  as  that  injury  arose  from  the  act  of  Pearson  in  putting 
him  there.  But  the  outrages  which  he  suffered  at  the  hands  of  the 
Vigilance  Committee,  his  forcible  abduction  from  California  and  trans- 
portation to  Acapulco,  the  difficulties  experienced  in  getting  to  New 
York,  and  his  inability  to  procure  a  passage  from  either  Acapulco  or 
Panama  to  San  Francisco,  cannot  be  compensated  in  this  action.  The 
obstructions  he  met  with  in  returning  to  California  were  wholly  due  to 
the  circumstances  surrounding  him,  and  were  not  caused  by  Pearson. 
Every  one,  doubtless,  to  whom  he  applied  for  passage  knew  the  power 


I  Coppin  r.  Braithwaite,  8  Jur.  875.  [This  Island  R.  Co.,  43  N.  Y.  502;  s.  c  67  Barb. 
language  would  seem  to  be  open  to  criti-  555,  and  a  late  case  of  the  Supreme  Judi- 
cium. See  Vintou  v.  Middlesex  etc.  R.  Co.,  cial  Court  of  Massachusetts,  — Linnehan  v. 
11  Allen,  304,  ante,  p.  6.    Compare  also  the  Sampson,  126  Mass.  506,  ».  c.  8  Cent.  L.  J. 


principle  of  the  decision  in  Eckert  u.  Long       442. —Ed.] 


PASSENGER    EXILED    BY    VIGILANCE    COMMITTEE.  21 

Supreme  Court  of  the  United  States. 

of  the  Vigilance  Committee,  and  were  afraid  to  encounter  it  by  return- 
ing an  exile  against  whom  the  sentence  of  death  had  been  pronounced. 
Pearson  had  no  malice  or  ill-will  towards  Daane;  and,  as  the  evidence 
clearly  shows,  excluded  him  from  his  boat  in  the  fear  that  if  returned 
to  San  Francisco  he  would  be  put  to  death.  It  was  sheer  madness  for 
Duane  to  seek  to  go  back  there.  Common  prudence  required  that  he 
should  wait  until  the  violence  of  the  storm  blew  over  and  law  and 
order  were  restored. 

This  course  he  finally  pursued,  and  he  did  not  return  to  California 
until  February,  1860.  If  he  believed  when  expelled  from  the  Stevens 
that  Pearson  had  done  him  a  great  wrong,  he  certainly  did  not  when  he 
filed  the  libel  in  this  case,  for  the  twelfth  article  is  as  follows:  "That 
when  libellant  was  so  banished  from  the  State  of  California  as  afore- 
said by  the  said  Vigilance  Committee,  he  was  threatened  with  the  penalty 
of  death  should  he  ever  return  to  said  State  ;  that  libellant  was  aware 
that  said  committee  had  caused  to  be  executed  a  number  of  persons, 
without  color  or  warrant  of  law  or  right,  and  that  the  said  committee 
had  the  power  and  ability  to  put  in  execution  their  threats,  and  libellant 
beheved,  and  had  reason  to  believe,  from  the  conduct  of  said  R.  H. 
Pearson  as  aforesaid,  and  the  treatment  he  received  from  the  hands  of 
said  Vigilance  Committee,  and  their  threats  as  aforesaid,  which  were  well 
known  to  said  Pearson,  that  should  he  return  to  said  State  his  return,  if 
attempted  or  if  successful,  would  be  impeded  and  I'esisted,  and  his  life 
put  in  peril  and  jeopardy,  which  belief  existed  up  to  the  time  of  his 
departure  from  New  York  to  California."  This  is  the  sworn  statement 
of  Duane,  that  his  life  was  in  peril  if  he  returned  to  California  at  an 
earlier  day ;  for  the  conduct  of  Pearson  to  which  he  refers  was  predi- 
cated on  a  corresponding  belief.  It  is  true  this  article  in  the  libel  was 
introduced  by  way  of  excuse  for  not  having  sooner  brought  the  suit, 
but  the  admissions  in  it  are  proper  evidence  for  all  purposes.  If  so,  it 
is  clear  that  the  legal  injury  which  Duane  suffered  at  the  hands  of 
Pearson  can  be  compensated  by  a  small  amount  of  money.  On  a 
review  of  the  whole  case,  we  are  of  opinion  that  the  damages  should 
be  I'educed  to  $50. 

It  is  ordered  that  this  cause  be  remitted  to  the  Circuit  Court  for  the 
District  of  California,  with  directions  to  enter  a  decree  in  favor  of  the 
appellee  for  $50.  It  is  further  ordered  that  each  party  pay  his  own 
costs  in  this  court. 

Order  accordingly. 


22  OBLIGATION    TO    RECEIVE    AND    CAUKY 


O'Brien  v.  Boston  and  Worcester  Railroad  Company. 


ti.  NOT  BOUND  TO  CAREY  PERSON  WHO  HAS  JUST  BEEN  EXPELLED 
FOR  GOOD  CAUSE. 

O'Brien  v.  Boston  and  Worcester  Eailroad  Company.* 
Supreme  Judicial  Court  of  Massachusetts^  1860, 

Hon.  Lemuel  Shaw,  Chief  Justice. 
"     Chari.es  A.  Dewey,    ~j 
"     Theron  Metcalf,        I 
"     George  T.  Bigelow,   {-  Associate  Justices, 
*'     Pliny  Merrick, 
"     Ebenezer  R.  Hoar, 

1.  No  Duty  to  carry  Passenger  who  has  been  rightfully  ejected  from  the  Train.  — 

A  passenger  who  has  been  rightfully  ejected  from  a  railway  train  cannot  by  again 
reentering  the  cars  and  tendei-ing  the  fare  acquire  a  right  to  be  carried. 

2.  Hegxilation  concerning  the  Ejection  of  Persons  who  refuse  to  pay  Fare.  — A 

regulation  by  a  railway  company  requiring  conductors  to  eject  from  the  cars  persons 
who  refuse  to  pay  their  fares,  and  not  to  accept  their  fare  after  such  ejection  if  oflFered 
at  that  time  or  after  the  cars  have  been  stopped,  is,  under  the  Revised  Statutes  of 
Massachusetts,  chap.  39,  sect.  83,  a  proper  regulation ;  and  in  an  action  for  damages  by 
a  person  who  has  been  properly  ejected  for  refusing  to  pay  his  fare,  and  who  ha- 
immediately  gone  upon  the  same  train  and  offered  to  pay  his  fare,  and  has  been  ejected 
a  second  time,  it  is  error  to  exclude  evidence  of  such  a  regulation. 

Action  op  tort  against  a  railroad  corporation  and  their  conductor 
for  ejecting  tlie  plaintiff  from  their  cars. 

At  the  ti'ial  in  the  Court  of  Common  Pleas  in  Middlesex,  at  Decem- 
ber term,  1858,  before  Sanger,  J.,  the  evidence  tended  to  show  that 
the  plaintiff  bought  at  Cardaville  a  passenger's  ticket  to  Brighton, 
and  also  a  return  ticket  from  Brighton  to  Cardaville ;  that  he  went  to 
Brighton  on  the  train,  and  thence  to  Boston  ;  that  in  the  afternoon  of 
the  same  day  he  entered  the  defendants'  cars  at  Boston  as  a  passenger, 
intending  to  go  to  Cardaville,  and  took  his  seat ;  that  before  the  train 
reached  Brighton,  the  conductor,  in  the  due  course  of  his  duty,  in 
taking  the  tickets  of  the  passengers  and  collecting  their  fares,  came  to 
the  plaintiff,  who  up  to  this  time  had  conducted  himself  properl}^  and 
asked  him  for  his  ticket ;  that  the  plaintiff  handed  him  the  return 
ticket  which  he  had  purchased  as  above  stated,  and  the  conductor  said 
that  it  was  not  good.  The  testimony  of  what  followed  was  conflicting. 
The  plaintiff  contended  that  the  evidence  showed  that  when  the  con- 

•  Reported  15  Gray,  20. 


PASSENGER   WHO    HAS    BEEN    EXPELLED.  23 

Supreme  Judicial  Court  of  Massachusetts. 

ductor  objected  to  the  ticket,  the  plaintiff  offered  to  pay  his  fare 
either  from  Boston  to  Brighton  or  the  whole  distance  from  Boston  to 
Cardaville,  before  the  bell  was  rung  to  stop  the  cars  or  any  attempt 
was  made  to  eject  him  from  them ;  that  he  made  the  same  offer  after 
the  bell  was  rung  and  before  he  was  ejected ;  but  that  the  conductor 
refused  to  receive  the  fare  and  forcibly  ejected  him.  The  defendants 
contended  that  the  evidence  showed  that  the  conductor  demanded  the 
fare  either  from  Boston  to  Brighton,  or,  if  the  plaintiff  preferred  so  to 
pay,  from  Boston  to  Cardaville ;  that  the  plaintiff  at  first  refused  to 
pay  any  thing ;  that  upon  his  persisting  in  his  refusal  to  pay  the  fare, 
the  conductor  rang  the  bell  and  stopped  the  cars ;  that  after  the  bell 
had  been  rung  for  stopping  the  cars,  and  before  and  after  the  cars  were 
stopped,  the  plaintiff  offered  to  pay  the  demanded  fare,  but  the  con- 
ductor refused  to  receive  it,  and  forcibly  ejected  the  plaintiff  from  the 
car  and  put  him  down  on  the  railroad  track.  It  appeared  that  the 
train  had  been  stopped  only  for  the  purpose  of  ejecting  the  plaintiff ; 
that  the  conductor  gave  the  signal  for  the  cars  to  start  and  proceeded 
in  his  duty  of  collecting  the  fares,  and  the  cars  started  on ;  that  the 
plaintiff  went  to  the  rear  car  and  got  upon  it ;  that  the  conductor  was 
immediately  informed  that  the  plaintiff  had  got  into  that  car,  and  at 
once  went  to  it,  and  although  the  plaintiff,  before  any  attempt  was  made 
to  stop  the  cars  a  second  time,  offered  to  pay  whatever  fare  the  con- 
ductor should  demand,  the  conductor  refused  to  receive  it,  stopped  the 
cars,  and  forcibly  ejected  the  plaintiff  a  second  time. 

The  defendants  offered  to  show  that,  by  the  regulations  of  the 
corporation,  conductors  were  to  eject  persons  who  refused  to  pay  their 
fare,  and  after  such  ejection  were  not  to  accept  their  fare  at  that  time 
if  offered  after  the  cars  had  been  stopped.  But  the  judge  rejected  the 
evidence. 

The  judge  instructed  the  jury  that,  as  there  was  no  question  but  that 
the  plaintiff  was  obliged  to  pay  his  fare  from  Boston  to  Brighton,  the 
conductor,  after  demanding  the  fare  and  waiting  a  reasonable  time  for 
the  plaintiff  to  pay,  had  a  right,  on  the  plaintiff's  refusal  to  pay,  to  ring 
the  bell  to  stop  the  cars  for  the  purpose  of  ejecting  him ;  but  after  the 
bell  was  thus  rung,  any  offer  or  tender  of  the  fare,  not  accepted  by  the 
conductor,  was  made  too  late ;  and  that,  notwithstanding  such  offer  or 
tender  of  fare,  the  conductor  had  a  right  to  stop  the  cars  and  eject  the 
plaintiff  therefrom,  using  no  more  force  than  was  necessary  for  the 
purpose. 

In  regard  to  the  second  ejection,  the  jury  were  instructed  that  the 
agents  of  the  corporation  might,  using  only  such  force  as  was  necessary. 


24  OBLIGATION  TO  RECEIVE  AND  CARRY. 

O'Brien  v.  Boston  and  Worcester  Eailroad  Company. 

eject  from  their  cars  any  passenger  who  wrongly  refused  to  pay  his  fare, 
which  was  properly  demandable,  and  which  had  been  demanded  in  a 
proper  manner ;  that  after  so  ejecting  hifii  they  could  stay  by,  if  they 
pleased,  and  prevent  him  from  entering  the  cars  again  at  that  time 
and  place ;  that  the  passenger  thus  properly  ejected  was  not  thereby 
forever  incapacitated  from  riding  in  the  cars  of  the  corporation,  but 
might,  if  he  conducted  himself  properly,  and  paid  his  fare,  or  tendered 
it  seasonably,  ride  in  a  subsequent  train  on  another  day  or  on  the  same 
day ;  or  if  the  ejection  was  near  a  station,  and  if,  after  the  ejection, 
for  any  reason,  the  train,  having  reached  that  station,  was  delayed  there 
until  the  passenger  came  up,  he  might  enter  the  cars  there,  and  be  car- 
ried if  he  conducted  himself  properly ;  and  so  if  after  the  ejection  the 
cars  should  move  on  and  for  any  reason  become  stationary,  and  the 
ejected  passenger  should  overtake  them,  and  enter  them  without  objec- 
tion, he  might  continue  therein  if  he  conducted  himself  properly  and 
paid  his  fare  or  seasonably  offered  to  pay  it ;  that  it  might  be  difficult 
to  fix  the  point  of  time,  as  a  matter  of  fact,  how  soon  after  the  ejection 
the  ejected  passenger  might  reenter  the  ears  with  the  right  and  privi- 
lege of  ordinary  passengers,  but  it  would  be  when  the  transaction  of 
the  ejection  was  completely  terminated ;  that  when  that  ended  a  new 
state  of  things  began,  and  it  was  for  the  jury  to  find  upon  all  the  proof 
whether  the  transaction  of  the  ejection  was  terminated  before  the  plain- 
tiff reentered  the  cars ;  that  unless  it  was  so  terminated  the  plaintiff 
could  not  recover  any  damages  for  the  second  ejection,  if  they  should 
find  the  first  ejection  to  have  been  lawfully  made  ;  and  if  it  was  so  ter- 
minated (and  the  burden  of  proof  was  upon  the  plaintiff  to  establish  the 
fact  by  a  preponderance  of  the  proof),  and  the  plaintiff  entered  the  cars 
without  objection,  although  without  an}^  express  permission,  and  although 
it  was  immediately  after  the  ejection  and  on  the  same  train,  and  not  at 
any  station  or  customary  stopping-place,  he  was  rightfully  there  ;  and, 
conducting  himself  properly  and  paying  his  fare,  or  seasonably  offering 
to  pay  his  fare,  he  had  a  right  to  be  carried,  and  could  recover  damages 
for  his  ejection. 

The  jury  found  the  first  ejection  justifiable,  the  second  unjustifiable, 
and  rendered  a  verdict  for  the  plaintiff  for  $150.  The  defendants 
alleged  exceptions. 

G.  S.  Hale,  for  the  defendants ;  A.  B.  Underwood,  for  the  plaintiff. 

BiGELow,  J, — The  correctness  of  the  instructions  given  to  the  jury 
in  this  case  can  be  readily  ascertained  by  considering  the  nature  of  the 
contract  entered  into  between  the  plaintiff  and  the  defendants,  and  the 
respective  rights  and  duties  of  the  parties  under  it.     On  entering  the 


PASSENGER    WHO    HAS    BEEN    EXPELLED.  25 

Supreme  Judicial  Court  of  Massachusetts. 

cars  of  the  defendants  at  Boston,  the  plaintiff  had  a  right  to  be  carried 
thence  to  his  place  of  destination  in  that  train  on  paying  the  usual  rale 
of  fare.  This  fare  he  was  bound  to  pay  according  to  the  regulations 
of  the  company,  or  on  a  reasonable  demand  being  made  therefor.  If 
he  failed  to  do  so,  then  his  rights  \inder  the  contract  ceased ;  he  had 
forfeited  them  by  his  own  act ;  and,  having  himself  first  broken  the 
contract,  he  could  not  insist  on  its  fulfilment  by  the  defendants.  This 
is  the  rule  of  common  law.  It  is  also  expressly  enacted  in  Stats.  1849, 
c.  191,  §  2,  that  no  person  who  shall  not,  upon  demand,  first  pay  the 
established  toll  or  fare  shall  be  entitled  to  be  transported  over  a  railroad. 
The  defendants,  therefore,  were  not  bound  to  transport  him  farther,  but 
were  justified  in  ejecting  him  from  the  cars  by  the  use  of  all  lawful  and 
proper  means. ^  Nor  could  he  regain  his  right  to  ask  of  the  defendants 
to  perform  their  contract  by  his  offer  to  pay  the  fare  after  his  ejec- 
tion. They  were  not  bound  to  accept  performance  after  a  breach. 
The  right  to  demand  the  complete  execution  of  the  contract  by  tlie 
defendants  was  defeated  by  the  refusal  of  the  plaintiff  to  do  that  which 
was  either  a  condition  precedent  or  a  concurrent  consideration  on  his 
part,  and  the  non-performance  of  which  absolved  the  defendants  of  all 
obligation  to  fulfil  the  contract.  After  being  rightfully  expelled  from 
the  train,  he  could  not  again  enter  the  same  cars,  and  require  the 
defendants  to  perform  the  same  contract  which  he  had  previously 
broken.  The  right  to  refuse  to  transport  the  plaintiff  farther,  and  to 
eject  him  from  the  train,  would  be  an  idle  and  useless  exercise  of  legal 
authority  if  the  party  who  had  hitherto  refused  to  perform  the  contract 
by  paying  his  fare  when  duly  demanded  could  immediately  reenter 
the  cars  and  claim  the  fulfilment  of  the  original  contract  by  the  defend- 
ants. Besides,  the  defendants  are  not  bound  to  receive  passengers  at 
any  part  of  their  route,  but  only  at  the  regular  stations  or  appointed 
places  on  the  line  of  the  road,  estal>lished  by  them  at  reasonal)le  dis- 
tances for  the  proper  accommodation  of  the  public. ^  Tiie  plaintiff 
had  therefore  no  right  to  enter  the  cars  at  the  place  where  the  train 
was  stopped  for  the  purpose  of  ejecting  him.  A  person  who  had  com- 
mitted no  breach  of  contract  could  not  claim  any  such  right ;  a  fortiori 
the  plaintiff  could  not.  It  follows  that,  on  the  facts  stated  in  the 
exceptions,  the  plaintiff  proved  no  just  claim  for  damages  against  the 
defendants,  and  the  instructions  given  to  the  jury,  under  which  the 
verdict  was  rendered,  were  clearly  erroneous. 


'  Ang.  on  Car.,  §§  525,  609;  Redf.  on  Eys.  ^  Ang.  on  Car.,  §  527  a;  Murch  v.  Concord 

26,  261 ;  Stephen  v.  Smith,  29  Vt.  160.  R.  Co.,  29  N.  H.  39. 


26  OBLIGATION    TO    RECEIVE    AND    CAKRY. 


Notes. 


The  court  also  erred  in  rejecting  the  evidence  of  the  regulations 
established  by  the  defendants  concerning  passengers  who  refused  to 
paj'  their  fare.  The  right  to  establish  all  needful  and  proper  regulations 
is  vested  in  the  defendants  by  law ;  i  and  they  should  have  been  per- 
mitted to  prove  them,  as  part  of  th*eir  justification. 

Exceptions  sustained. 


NOTES. 


§  1.  Who  is  a  Common  Carrier  of  Passengers. — A  common  carrier  of  pas- 
sengers is  one  who  undertakes  for  liire  to  carry  all  persons  indifferently  who  may 
apply  for  passage.  To  constitute  one  a  common  carrier  it  is  necessary  that  he 
should  hold  himself  out  as  such.  This  may  be  done  not  only  by  advertising,  but 
by  actually  engaging  in  the  business  and  pursuing  the  occupation  as  an  employ- 
ment. Railroad  companies,  the  owners  of  ships,  steamboats,  ferries,  omnibuses, 
street  cars,  and  stage-coaches,  are  usually  common  carriers  of  passengers.^  The 
common  carrier  may  transport  his  passengers  only  within  the  limits  of  a  town, 
as  the  owner  of  an  omnibus  or  other  vehicle  plying  between  a  railroad  depot 
and  a  hotel,*  or  street  cars  running  upon  a  line  whose  terminal  points  are  within 
the  limits  of  the  same  city;  or  he  may  carry  between  adjacent  or  remote 
cities  in  the  same  country;  *  or  the  place  to  which  he  holds  himself  out  to  carry 
his  passengers  may  be  in  a  foreign  country. °  The  passenger's  destination  is 
immaterial  in  deciding  whether  the  carrier  is  a  common  carrier  of  passengers  or 
whether  he  is  a  private  or  special  carrier.  The  carrier  may  be  both  a  common 
carrier  of  passengers  and  a  common  carrier  of  goods,  by  the  same  conveyance  and 
at  the  same  time.  And  he  may  also  make  reasonable  rules  by  which  he  carries 
goods  in  one  conveyance  and  passengers  in  another,  in  which  case  he  is  a  com- 
mon carrier  of  passengers  or  of  goods  only  in  the  respective  conveyances  which 
he  has  assigned  to  those  purposes.  Thus,  in  the  case  of  railroad  companies:  if 
as  a  general  rule  they  confine  the  transportation  of  goods  to  what  are  called 
freight  trains,  and  the  conveyance  of  passengers  to  regular  passenger  trainsi 
they  are  common  carriers  of  goods  as  to  the  former,  and  of  passengers  as  to 
the  latter.  Yet  they  may  by  usage  or  practice  become  common  carriers  of 
goods  on  passenger  trains  and  common  carriers  of  passengers  on  freight  trains, 
although  these  trains  may  be  used  mainly  for  the  purposes  for  which  they 
were  originally  intended.  Thus,  if  they  are  in  the  habit  of  carrying  passengers 
for  hire,  such  as  emigrants,  or  drovers,  or  any  other  class  of  persons,  upon 

'  Rev.  stats.,  chap.  39,  §83;  The  Common-  3  Brod.  &B.54;  s.  c.  9  Price,  408;  HoUister  v. 
wealth  r.  Power,  7  Mete.  602.  Nowlen,  19  Wend.  234;  Bennett  v.  Duttou, 

Nashville  etc.  R.  Co.  v.  Messino,!  Sneed,        10  N.  H.  481,  ante,  p.  2;  Lovett  v.  Hobbs,  2 


220;  Hanley  v.  Harlem  B.  Co.,  1  Edm.  359 
Peixotti  V.  McLaughlin,  1  Strobh.  L.  468 
Slimmer  v.  Merry,  23  Iowa,  90;  Richards  v. 


Show.  127. 

3  Parmelee  v.  Lowitz,  74  111.  116. 
*  Richards  v.  Westcott,  2  Bosw.  589. 


Westcott,  2  Bosw.  589 ;  Jencks  v.  Coleman,  2  5  Benett  v.  Peninsular  etc.  Steamboat  Co., 

Sumn.  221,  anU,  p.  11;  Bielhuiion  v.  Wood,        6  C.  B.  775. 


WHO    IS    A    COMMON    CARRIER    OF    PASSENGERS.  27 


Free  Passengers  —  Contractors,  etc. 

freiglit  trains,  they  become  common  carriers  of  that  class  of  passengers  by 
freight  trains,  and  thereby  assume  the  liabilities  of  common  carriers  indiffer- 
■ently  both  of  persons  and  propei'ty  by  such  trains. i 

The  admission  to  a  railroad  train,  although  payment  is  received  for  the  pas- 
senger's carriage,  will  not  of  itself  make  those  operating  the  ti'ain,  and  who 
receive  the  pay,  common  carriers.  Thus,  in  a  case  where  the  defendants,  who 
wer-e  contractors  for  building  a  railroad,  were  running  a  construction-train  to 
which  was  attached  a  caboose-car,  in  which  the  men  connected  with  the  train 
liad  their  "sleeping-bunks"  and  wherein  the  tools  used  by  those  engaged  in 
tlie  construction  of  the  railroad  were  stored,  and  in  which  car  persons  were 
sometimes  carried,  although  the  contractors  did  not  wish  to  carry  passen- 
gers, who  sometimes  were  charged  fare,  but  not  always,  and  the  conductor 
of  the  train  received  on  board  of  the  caboose-car  a  person  who  paid  his  fare 
for  the  distance  he  wished  to  ride,  and  while  being  carried  was  injured  by 
the  car  being  thrown  off  the  track,  it  was  held  that  the  defendants  were  not 
general  carriers  of  passengers  any  more  than  they  were  common  carriers  of 
goods.  They  were  but  contractors  to  build  a  road.  The  caiTiage  of  anybody  or 
any  thiug  was  neither  their  principal  and  direct  business  nor  an  occasional  and 
incidental  employment.''  In  another  case  where  the  person  injured  was  being 
carried  on  a  construction-train,  the  railroad  company  was  held  to  sustain  the 
relation  of  common  carrier  towards  him.^  If,  however,  a  passenger  is  received 
on  board  of  a  train  in  the  usual  way,  which  to  all  appearances  is  owned  by  a 
common  carrier  of  passengers,  and  is  treated  by  the  agents  of  the  company 
ns  a  passenger,  it  will  devolve  upon  the  company  to  show  that  it  is  not  a 
common  carrier.  Thus,  in  an  action  for  an  injury  to  a  passenger  upon  a  railroad 
I  rain,  there  was  evidence  tending  to  show  that  the  defendant  company  was  duly 
organized  and  incorporated  and  its  road  constructed  and  put  in  operation,  and 
that  trains  were  being  run  and  business  transacted  upon  it,  and  men  being  em- 
ployed to  keep  it  in  repair ;  that  on  the  day  of  the  accident  which  occasioned  the 
injury  the  plaintiff  purchased  a  ticket  at  a  station  on  a  connecting  road  to  a  station 
on.  the  defendant's  road,  and  that  after  the  train  reached  the  defendant's  road 
the  conductor  recognized  the  plaintiff's  ticket  as  entitling  him  to  a  ride  over  the 
road,  taking  up  the  ticket  in  the  usual  way  and  allowing  him  to  pi'oceed  without 
objection,  soon  after  which  the  injui-y  was  received.  It  was  held  that  this  evidence 
made  out  a  primd,  facie  case  that  the  defendant  was  a  common  carrier  operating 
its  road,  and  that  it  had  undertaken  to  transport  the  plaintiff  over  it;  and  that  in 
t  he  absence  of  any  proof  by  the  defendant  that  the  road  was  not  its  road  and 
was  not  being  operated  in  the  usual  way  of  operating  railroads,  which  proof 
would  be  peculiarly  within  the  defendant's  knowledge,  the  jury  would  be  fully 
justified  in  finding  that  issue  in  the  afflrmative.*  But  a  railroad  company  cannot 
assume  the  position  of  a  common  carrier  towards  a  person's  baggage  who 
refuses  to  occupy  the  relation  of  passenger  towards  it.  Thus,  where  a  person 
went  with  his  baggage  to  a  train,  and  the  baggage-master  refused  to  check  it 
until  he  had  purchased  his  tickets,  and  thereupon  he  went  to  procure  tickets, 
and  while  he  was  gone  the  baggage-master  weighed  his  baggage,  and  on  his 

'  Flinn  v.  I'hila.  etc.  R.  Co.,  1  Houst.  (Del.)  3  Nashville  etc.  U.  Co.  v.  Mcssino,  1  Sneed, 

469.  220. 

-  Shoemaker  v.  Kingsbury,  12  Wall.  369.  *  Bixby  v.  Montpelier  etc.  R.  Co., 49  Vt.  123. 


28  OBLIGATION    TO    RECEIVE    AND    CARRY. 


Notes. 


return  clemanded  pay  for  the  overweight  of  the  baggage,  which  the  person 
refused  to  pay  and  demanded  the  return  of  his  baggage,  but  on  account  of 
it  being  covered  up  by  other  baggage  in  the  car  where  it  had  been  placed 
the  baggage-master  refused  to  return  it  to  him  or  give  him  his  checks,  and 
the  baggage  was  carried  on  the  train  to  the  place  to  which  the  passenger  intended 
to  have  it  checked,  but  the  owner  did  not  go,  and  after  its  arrival  it  was  burned, 
it  was  held  that  the  railroad  company  did  not  sustain  the  relation  of  a  common 
carrier  towards  the  plaintiff  and  his  trunks,  the  plaintiff  having  refused  to  occupy 
towards  the  defendant  the  position  of  passenger. ^  The  Commissioners  of  Emi- 
gration in  the  city  of  New  York  are  not  by  virtue  of  their  duties  common 
carriers  of  emigrants  or  their  baggage  arriving  there. - 

§  2.  Duty  of  Common  Carrier  to  receive  and  carry  Passengers.  —  A  distin- 
guishing feature  of  common  carriers  of  passengers,  as  differing  from  private  or 
special  carriers  of  the  same,  is  the  duty  generally  to  receive  and  transport  all 
persons  who  apply  for  passage.  They  are  regarded  by  law  as  if  they  were  in  the 
public  service,  and  this  duty  is  imposed  from  the  public  nature  of  their  emploj^- 
ment.  There  is  an  implied  obligation  on  their  part  not  to  refuse  to  receive  and 
carry  persons  who  offer  themselves  as  passengers.  All  persons,  in  a  general 
sense,  are  equal  before  the  law,  and  the  common  carrier  owes  this  general  duty 
to  the  whole  public.  This  obligation  is  not  based  upon  the  express  contract  of 
carriage,  although  it  may  be  modified  and  limited  by  it,  but  it  is  wholly  inde- 
pendent of  any  contract.'  It  is  closely  analogous  to  the  duty  of  innkeepers  ta 
receive  all  guests  who  may  apply  for  accommodations.  And  the  same  general 
principles  of  law  apply  in  respect  to  this  duty  of  common  carriers  of  passengers- 
as  apply  to  the  duty  of  innkeepers  to  receive  all  who  come.  Of  course  we  speak 
only  of  the  general  duty  of  the  common  carrier.  He  is  not  bound  to  carry  an 
improper  person,  or  to  carry  a  passenger  to  a  place  to  which  he  does  not  hold 
himself  out  as  a  carrier.  And  the  common  carrier  may  make  reasonable  rules 
respecting  the  reception  and  carriage  of  passengers,  which  may  sensibly  abridge 
the  general  duty  as  above  stated.  He  is  not  bound  to  carry  all  persons  at  all 
times ;  but  he  may  not  discriminate  between  persons  whom  he  will  carry,  unless 
such  discrimination  is  based  upon  a  reasonable  rule  or  for  good  cause.* 

§3.  What -will  excuse  Carrier  from  receiving  and  carrsang  Passenger. — 
While  it  is  the  duty  of  the  carrier  to  receive  all  proper  persons  who  apply  for 
transportation,  so  long  as  he  has  room,  on  their  complying  with  all  reasonable 

1  McCormicki?.  Pa.  etc.  R.  Co.,49N.  Y.303.  293;  Sanford  v.  Catawissa  etc.  R.  Co.,  3  Phila. 

*  Murphy  v.  Commissioners  of  Emigra-  107;  Day  t;.  Owen,  5  Mich.  520;  West  Chester 
tion,  28  N.  Y.  134;  Semler  v.  Commissioners  etc.  R.  Co.  t;.  Miles,  55  Pa.  St.  209;  Bennett 
of  Emigration,  1  Hilt.  244.  v.  Dutton,  10  N.  H.  4S1,  ante,  p.  2.    If  a  rail- 

3  Saltonstall  v.  Stockton,  1  Taney's  Dec.  road  company  holds  itself  out  as  a  common 

11,  19  (affirmed,  sub  nom.  Stokes  v.  Salton-  carrier  to  a  point  beyond  the  termination 

stall,  13  Pet.  181) ;  Hannibal  R.  R.  v.  Swift,  12  of  its  road,  then  it  is  a  common  carrier  for 

Wall.  263,270;  Tarbell  v.  Central  Pacific  R.  the  whole  distance;  and  if  it  professes  to 

Co.,  34  Cal.  616;  Bretherton  V.  Wood,  3  Brod.  contract  and   does  contract  with   persons 

&  B.  54;  Pleasants  r.  North  Beach   etc.  R.  generally  to  carry  them  the  entire  distance, 

Co.,  34  Cal.  586;  Turner  v.  North  Beach  etc.  it  must  treat  all  alike  and  contract  with  and 

B.  Co.,  34  Cal.  594.  carry  all  who  apply.    Wheeler  v.  San  Fran- 

*  Indianapolis  etc.  R.  Co.  v.  Riuard,  46  Ind.  Cisco  etc.  B.  Co.,  31  CaJ.  46. 


What  will  excuse  refusal  to  carry.        29 


Want  of  Room  —  Non-payment  of  Fare. 

rules  of  the  carrier,  he  is  not  obliged  to  carry  one  Avhose  ostensible  purpose  is  to 
Injure  the  carrier's  business, i  one  fleeing  from  justice,  one  going  upon  a  train  to 
assault  a  passenger,  commit  larceny  or  robbery,  or  for  interfering  with  the  proper 
regulations  of  the  company,  or  for  gambling,  or  committing  any  crime ;  nor  is  he 
bound  to  carry  a  person  who  on  account  of  his  drunken  condition  would  be 
obnoxious  to  passengers,  nor  one  affected  with  a  contagious  disease."  Nor  is  the 
carrier  bound  to  carry  passengers  on  Sunday.* 

§  4.  Want  of  Room  will  usually  excuse.  —  Generally  speaking,  the  want  of  ade- 
•quate  accommodations  to  transport  passengers  will  excuse  the  failure  to  receive 
them  on  the  part  of  the  carrier,  —  as,  where  there  is  an  unexpected  increase  in  the 
number  of  those  applying  for  passage,  or  where  the  reception  of  more  would 
incommode  those  who  have  already  taken  passage.*  And  the  mere  purchase  of  a 
ticket  for  a  railway  journey  does  not  impose  an  absolute  duty  upon  the  part  of  the 
company  to  transport  the  passenger  at  the  time  he  was  led  to  expect  he  might  go.^ 
But  it  has  been  held  that  where  a  railroad  company  has  issued  a  ticket  stipu- 
lating to  run  trains  in  a  certain  manner,  within  a  certain  time,  it  cannot  excuse 
itself  from  transporting  a  purchaser  of  such  a  ticket  at  the  time  he  applies  for 
passage,  within  the  terms  of  the  ticket,  or  at  a  reasonable  time  thereafter,  on 
the  ground  that  there  is  no  room  for  him  on  the  train.®  And  while  the  carrier  is 
not  bound  to  receive  an  unusual  number  of  passengers,  beyond  the  number  he 
might  reasonably  be  required  to  provide  for,  if  he  does  receive  them,  without 
condition,  or  notice  of  his  inability  to  provide  for  them,  he  assumes  all  the  obliga- 
tions usually  incumbent  on  such  carriers.' 

§  5.  Payment  of  Fare.  —  This  duty  to  receive  and  carry  all  who  apply  for 
passage  presupposes  that  the  carrier  is  to  be  paid  for  his  services  in  transport- 
ing the  persons  who  make  application.  Therefore  a  person  who  has  been 
deprived  of  his  rights  by  the  violation  of  this  public  duty  on  the  part  of  the 
carrier  must  show  that  he  was  ready  and  willing  to  pay  the  lawful  fare  at  the 
time  the  carrier  refused  to  receive  him.  It  is  not  necessary  that  the  passen- 
ger should  make  a  strictly  legal  tender  of  his  fare.^  But  it  has  been  held  that 
where  it  becomes  necessary  to  stop  a  railroad  train  in  order  to  eject  a  passenger 
for  not  paying  his  fare,  he  cannot  claim  to  be  immediately  readmitted  to  the 
train  upon  a  tender  of  his  fare.  If  one  passenger  might  by  his  unjustifiable 
bumor  cause  the  cars  to  stop,  another  might  do  the  same  thing,  and  thus  the 
utmost  irregularity  in  the  running  of  the  train  might  be  produced,  jeopardizing 
the  safety  of  the  company's  property  and  the  lives  of  all  on  board.    After  having 

1  Jencks  v.  Coleman,  2  Sumn.  221,  ante,  p.  ^  Hurst  v.  Great  Western  R.  Co.,  19  C.  B. 
11;  The  D.  R.  Martin,  11  Blatchf.  233.  (N.  S.)  310;  s.  c  11  Jur.  (N.  S.)  730. 

2  Thurston  v.  Union  Paoifio  R.  Co.,  4  Dill.  <>  Hawcroft  v.  Great  Northern  R.  Co.,  8 
321,  ante,  p.  10;  Pittsburgh  etc.  R.  Co.  v.  Van-  Eng.  Law  &  Eq.  362;  s.  c.  16  Jur.  196;  post, 
dyne,  57  Ind.  576 ;  Pittsljurgh  etc.  R.  Co.  v.  p.  59. 

Pillow,  76  Pa.  St.  510.    See  also  Arnold  v.  Illi-  '  Evansville  etc.  K.  Co.  v.  Duncan,  28  Ind. 

nois  etc.  R.  Co.,  83  111.  273 ;  Vinton  v.  Middle-  441. 

sex  R.  Co.,  11  Allen,  304,  ante,  p.  6.  »  Tarbell  v.  Central  Pacific  R.  Co.,  34  Cal. 

■^  Walsh  V.  Chicago  etc.  R.  Co.,  42  Wis.  23.  616;  Day  v.  Owen,  5  Mich.  520;  Nashville  etc. 

«  The  Pacific,  1   Blatchf.   569 ;  Jencks  v.  R.  Co.  v.  Messino,  1  Sneed,  220. 
•Coleman.  2  Sumn.  221,  ante,  p.  11. 


30  OBLIGATION    TO    RECEIVE    AND    CARRY. 


Notes. 


forfeited  his  right  to  remain  upon  the  train,  it  is  for  the  company's  agents 
to  say  whether  he  may  be  readmitted  after  having  occasioned  the  inconvenience 
of  a  stoppage.' 

§  6.  Ejecting  Passengers  ■who  have  been  received. —  It  may  be  stated  as  a 
proposition  of  law  that  the  carrier  may  for  good  cause  exclude  a  passenger. 
But  if  he  does  receive  him  knowing  that  a  good  cause  exists  for  his  exclusion, 
he  cannot  afterwards  eject  him  for  the  same  cause.  The  carriei  cannot  refuse 
to  pei-form  the  contract  of  carriage,  and  plead  in  justification  tacts  which  he 
Ivuew  existed  at  the  time  the  contract  was  made.  But  there  are  cases  that  go 
further  than  this.  They  seem  to  hold  that  when  the  passenger  Is  received  and 
the  journey  is  begun  the  carrier  must  be  held  to  have  consented  to  the  passen- 
ger's being  carried  to  his  destination,.notwithstanding  that  a  reason  exists  which 
would  have  been  sufficient  in  law  to  justify  the  passenger's  excluision,  but  which 
was  unknown  to  the  carrier,  at  the  time  the  passenger  was  received.  Thus,  in 
a  case  in  the  United  States  Supreme  Court,''  where  a  person  whom  the  master 
would  have  been  justified  in  refusing  to  receive  as  a  passenger  had  he  been 
aware  at  the  time  of  certain  facts  in  regard  to  him,  got  on  board  of  a  vessel,  and 
after  the  vessel  was  at  sea  the  master  became  aware  of  these  facts,  and  trans- 
ferred the  person  to  another  vessel,  which  returned  him  to  the  place  where  he 
embarked,  it  was  held  that,  while  he  would  have  been  justified  in  refusing  to 
receive  him  in  the  first  instance,  it  was  too  late  after  the  ship  had  got  to  sea  to 
take  exceptions  to  the  character  of  the  passenger  or  to  his  peculiar  position, 
provided  he  violated  no  inflexible  rule  of  the  boat  in  getting  on  board.  Again, 
in  a  California  case,'^  where  a  person  got  on  a  train,  and  after  the  train  had  pro- 
ceeded five  miles  on  its  way  the  conductor  demanded  his  fai'e,  which  the  person 
tendered  in  legal-tender  currency,  and  the  couductor  ejected  him  because  he 
would  not  pay  his  fare  in  coin,  the  then  current  money  in  that  State,  the  court 
said :  '*  Whether  the  defendant  could  have  legally  exacted  payment  in  coin  before 
the  plaintiff  was  admitted  into  the  cars  and  the  journey  commenced  is  a  ques- 
tion not  involved  in  this  case,  and  upon  which  we  express  no  opinion.  Having- 
received  the  plaintiff,  and  proceeded  several  miles  upon  the  journey,  the  defend- 
ant must  be  held  to  have  consented  to  receive  in  payment  of  the  fare  any  good 
and  lawful  money  which  the  plaintiff  might  tender  when  called  upon  for  payment. 
The  kind  of  money  had  then  ceased  to  be  an  open  question,  for  the  contract  wa» 
already  made  and  in  process  of  performance.''^  We  allude  to  this  subject  farther 
on,  but  we  here  want  to  say  that  we  do  not  regard  these  cases  as  stating  sound 
law  in  so  far  as  they  hold  that  the  contract  of  carriage  is  made  simply  by  the 
passenger  getting  on  board  the  conveyance  and  it  beginning  its  trip.  There 
must  be  a  union  of  minds,  a  mutual  assent,  by  the  parties,  to  form  a  contract. 
If  reasons  exist  unknown  to  the  carrier  which  would  have  absolved  him  from 
the  implied  public  duty  of  transporting  the  passenger,  can  it  be  said  that  the 
passenger  may  by  concealing  the  facts  until  the  carriage  is  begun  invest  the 
carrier  with  this  duty,  thus  profiting  by  his  own  wrong? 

1  Nelson  V.  Long  Island  R.  Co.,  7  Hun,  140;  «  Pearson  v.  Duane,  4  Wall.  605,  ante,  p. 

The  People  u.  Jillson,  3  Park.  Cr.  2U ;  Hibbard  17. 

V.  New  York  etc.  R.  Co.,  15  N.  Y.  455;  O'Brien  3  TarbeU  v.  Central  Pacific  R.  Co.,  34  CaL. 

..V.  Boston  etc.  R.  Co.,  15  Gray,  20,  ante,  p.  22.  616,  623. 


CHAPTER    II. 

WHEN    THE    RELATION    OF    CARRIER    AND   PASSENGER 

SUBSISTS. 


Leading  Cases:     1.  Philadelphia  and  Reading  Bailroad  Company  v.  Derby. — 
Injury  to  passenger  who  rides  free  —  Respondeat  supe- 
rior—  Sei'viint  acting  against  orders. 
2.  Noltun  V.  Wtstarn  Railroad  Corporation.  —  Injury  to  mail 
agent  upon  railway  train. 

Notes:     §  1.  Tlie  relation  of  carrier  and  passenger  arises  how. 

2.  Consummation  of  the  contract  not  necessary. 

3.  Persons  riding  gratuitously. 

4.  What  constitutes  gi'atuitous  carriage. 

6.  Persons  carrying  on  business  on  the  carrier's  vehicles  or 
vessels. 

6.  Employees  of  the  carrier. 

7.  Persons  attending  passengers  arriving  or  departing. 

8.  Passengers  temporarily  absent  from  conveyance,  etc. 

9.  Evidence  as  to  who  is  a  passenger  —  Burden  of  proof — 

Employee's  pass  —  Evidence  to  show  tliat  the  train  is 
a  passenger  train. 
10.  Persons  employed  on  private  car — Slaves  carried  for  hire. 


1.   mJUEY  TO   PASSENGER  WHO   RIDES   FREE  — RESPONDEAT   SUPE- 
RIOR—SERVANT  ACTING  AGAINST   ORDERS. 


Philadelphia  and   Reading   Railroad   Company   v,  Derby.* 

Supreme  Court  of  the  United  States,  1852. 

Hon.  Roger  B.  Taney,  Chief  Justice. 

"  John  McLean, 

"  James  M.  Wayne, 

"  John  Catron, 

*•  Peter  V.  Daniel,        }  Associate  Justices. 

"  Samuel  Nelson, 

"  Robert  C.  Grier, 

"  Benjamin  R.  Curtis, 

1.  Injury  to  Passenger  who  rides  free.  — To  an  action  by  a  person  for  an  Injury  received 
by  him  while  travelling  upon  a  railwiiy  train,  by  reason  of  the  negligence  ot  the  eer- 


■  Reported,  14  How.  468. 


(81) 


S2         WHEN  KELATION  OF  CARRIER  AND  PASSENGER  SUBSISTS. 
Philadelphia  and  Reading  Railroad  Company  v.  Derby. 

vants  of  the  railway  company,  it  Is  no  defence  that  he  was  not  a  passenger  for  hire 
but  that  he  was  travelling  gratuitously  by  invitation  of  the  president  of  the  defendant 
company,  he  himself  being  a  shareholder  therein;  the  governing  principle  being  that 
the  confidence  induced  by  undertaking  any  service  for  another  is  a  sufficient  legal 
consideration  to  create  a  duty  in  the  performance  of  it. 

■2.  Respondeat  Superior. —  Xor  is  it  a  defence  that  the  negligent  act  of  the  servant  of  the 
defendant  which  caused  the  injury  was  done  contrary  to  express  orders  received  from 
his  superiors. 

St.  George  T.  Campbell  and  Fisher,  for  the  plaintiffs ;  Wharton  and 
Binney,  contra. 

Mr.  Justice  Grier  stated  the  case  and  delivered  the  opinion  of  the 
court. — This  action  was  brought  by  Derby,  the  plaintiff  below,  to  recover 
damages  for  an  injury  suffered  on  the  railroad  of  the  plaintiffs  in  error. 
The  peculiar  facts  of  the  case,  involving  the  questions  of  law  presented 
for  our  consideration,  are  these: — 

The  plaintiff  below  was  himself  the  president  of  another  railroad 
company,  and  a  stockholder  in  this.  He  was  on  the  road  of  defendants 
by  invitation  of  the  president  of  the  company,  not  in  the  usual  pas- 
senger-cars, but  in  a  small  locomotive-car  used  for  the  convenience  of 
the  officers  of  the  company,  and  paid  no  fare  for  his  transportation. 
The  injury  to  his  person  was  caused  by  coming  into  collision  with  a 
locomotive  and  tender,  in  the  charge  of  an  agent  or  servant  of  the  com- 
pany, which  was  on  the  same  track  and  moving  in  an  opposite  direction. 
Another  agent  of  the  company,  in  the  exercise  of  proper  care  and 
caution,  h&d  given  orders  to  keep  this  track  clear.  The  driver  of  the 
colliding  engine  acted  in  disobedience  and  disregard  of  these  orders, 
and  thus  caused  the  collision. 

The  instructions  given  by  the  court  below  at  the  instance  of  the 
plaintiff,  as  well  as  those  requested  by  the  defendants  and  refused  by 
the  court,  taken  together,  involve  but  two  distinct  points,  which  have 
been  the  subject  of  exception  here,  and  are  in  substance  as  follows :  — 

1.  The  court  instructed  the  jury  that  if  the  plaintiff  was  lawfully  on 
the  road  at  the  time  of  the  collision,  and  the  collision  and  consequent 
injury  to  him  were  caused  by  the  gross  negligence  of  one  of  the 
servants  of  the  defendants,  then  and  there  employed  on  the  road,  he  is 
entitled  to  recover,  notwithstanding  the  circumstances  given  in  evidence, 
and  relied  upon  by  defendants'  counsel  as  forming  a  defence  to  the 
action,  to  wit:  that  the  plaintiff  was  a  stockholder  in  the  company, 
riding  by  invitation  of  the  president,  paying  no  fare,  and  not  in  the 
usual  passenger-cars,  etc. 

2.  That  the  fact  tlmt  the  engineer  having  the  control  of  the  colliding 
locomotive  was  forbidden  to  run  on  that  track  at  the  time,  and  had 


INJURY    TO    FREE    PASSENGER.  33 

Supreme  Court  of  the  United  States. 

acted  in  disobedience  of  such  orders,  was  not  a  defence  to  the 
action. 

1.  In  support  of  the  objections  to  the  first  instruction,  it  is  alleged 
*'  that  no  cause  of  action  can  arise  to  any  person  by  reason  of  the 
occurrence  of  an  unintentional  injury,  while  he  is  receiving  or  partaking 
of  any  of  those  acts  of  kindness  which  spring  from  mere  social  rela- 
tions ;  and  that  as  there  was  no  contract  between  the  parties,  express 
or  implied,  the  law  would  raise  no  duty  as  between  them,  for  the  neglect 
of  which  an  action  can  be  sustained." 

In  support  of  these  positions,  the  cases  between  innkeeper  and  guest 
have  been  cited,  such  as  1  Rolle's  Abridgment,  3,  where  it  is  said,  "  If  a 
host  invite  one  to  supper,  and  the  night  being  far  spent  he  invites  him 
to  stay  all  night,  and  the  guest  be  robbed,  yet  the  host  shall  not  be 
chargeable,  because  the  guest  was  not  a  traveller;"  and  Calye's  Case,^ 
to  the  same  effect,  showing  that  the  pecuUar  liability  of  an  innkeeper 
arises  from  the  consideration  paid  for  his  entertainment  of  travellers, 
and  does  not  exist  in  the  case  of  gratuitous  lodging  of  friends  or 
guests.  Tlie  case  of  Farwell  v.  Boston  and  Worcester  Railroad  Com- 
pany^ hsiS  also  been  cited,  showing  that  the  master  is  not  liable  for 
any  injury  received  by  one  of  his  servants  in  consequence  of  the  care- 
lessness of  another  while  both  are  engaged  in  the  same  service. 

But  we  are  of  opinion  that  these  cases  have  no  application  to  the 
present.  The  liability  of  the  defendants  below  for  the  negligent  and 
injurious  act  of  their  servant  is  not  necessarily  founded  on  any  contract 
or  privity  between  the  parties,  nor  affected  by  any  relation,  social  or 
otherwise,  which  they  bore  to  each  other.  It  is  true,  a  traveller  by 
stage-coach  or  other  public  conveyance  who  is  injured  by  the  negli- 
gence of  the  driver  has  an  action  against  the  owner,  founded  on  his 
contract  to  carry  him  safely.  But  the  maxim  of  respondeat  superior, 
which  by  legal  imputation  makes  the  master  liable  for  the  acts  of  his 
servant,  is  wlioUy  irrespective  of  any  contract,  express  or  implied,  or 
any  other  relation  between  the  injured  party  and  the  master.  If  one 
be  lawfully  on  the  street  or  highway,  and  another's  servant  carelessly 
di'ives  a  stage  or  carriage  against  him  and  injures  his  property  or 
person,  it  is  no  answer  to  an  action  against  the  master  for  such  injur}- 
either  that  the  plaintiff  was  riding  for  pleasure,  or  that  he  was  a  stock- 
holder in  the  road,  or  that  he  had  not  paid  his  toll,  or  that  he  was  the 
guest  of  the  defendant,  or  riding  in  a  carriage  borrowed  from  him,  or 
that  the  defendant  was  the  friend,  benefactor,  or  brother  of  the  plaintiff. 

1  8  Coke,  63.  *  4  Mete.  49. 


34         WHEN  RELATION  OF  CARRIER  AND  PASSENGER  SUBSISTS. 

Philadelphia  and  Reading  Railroad  Company  v.  Derby. 

These  arguments,  arising  from  the  social  or  domestic  relations  of  life, 
may  in  some  cases  successfully  appeal  to  the  feelings  of  the  plaintiff^ 
but  will  usually  have  little  effect  where  the  defendant  is  a  corporation, 
which  is  itself  incapable  of  such  relations  or  the  reciprocation  of  such 
feelings. 

In  this  view  of  the  case,  if  the  plaintiff  was  lawfully  on  the  road  at 
the  time  of  the  colHsion,  the  court  were  right  in  instructing  the  jury 
that  none  of  the  antecedent  circumstances,  or  accidents  of  his  situation, 
could  affect  his  right  to  recover. 

It  is  a  fact  peculiar  to  this  case  that  the  defendants,  who  are  liable 
for  the  act  of  their  servant  coming  down  the  road,  are  also  the  carriers 
who  were  conveying  the  plaintiff  up  the  road,  and  that  their  servants 
immediately  engaged  in  transporting  the  plaintiff  were  not  guilty  of  any 
negligence,  or  in  fault  for  the  collision.  But  we  would  not  have  it 
inferred  from  what  has  been  said  that  the  circumstances  alleged  in  the 
first  point  would  affect  the  case  if  the  negligence  which  caused  the 
injury  had  been  committed  by  the  agents  of  the  company  who  were  in 
the  immediate  care  of  the  engine  and  car  in  which  the  plaintiff  rode, 
and  he  was  compelled  to  rely  on  these  counts  of  his  declaration  founded 
on  the  duty  of  the  defendant  to  carry  him  safely.  This  duty  does  not 
result  alone  from  the  consideration  paid  for  the  service.  It  is  imposed 
by  the  law,  even  where  the  service  is  gratuitous.  "The  confidence 
induced  by  undertaking  any  service  for  another  is  a  sufficient  legal 
consideration  to  create  a  duty  in  the  performance  of  it."  ^  It  is  true,  a 
distinction  has  been  taken,  in  some  cases,  between  simple  negligence 
and  great  or  gross  negligence  ;  and  it  is  said  that  one  who  acts  gratuit- 
ously is  liable  only  for  the  latter.  But  this  case  does  not  call  upon  us 
to  define  the  difference  (if  it  be  capable  of  definition),  as  the  verdict 
has  found  this  to  be  a  case  of  gross  negligence. 

When  carriers  undertake  to  convey  persons  by  the  powerful  but 
dangerous  agency  of  steam,  public  policy  and  safety'  require  that  they 
be  held  to  the  greatest  possible  care  and  diligence.  And  whether  the 
consideration  for  such  transportation  be  pecuniary  or  otherwise,  the 
personal  safety  of  the  passengers  should  not  be  left  to  the  sport  of 
chance  or  the  neghgence  of  careless  agents.  Any  negligewce,  in  such 
cases,  may  well  deserve  the  epithet  of  "gross." 

In  this  view  of  the  case,  also,  we  think  there  was  no  error  in  the  first 
instruction. 

2.  The  second  instruction  involves  the  question  of  the  liability  of  the 

'  See  Coggs  v.  Bernaid,  and  cases  cited  in  1  Smith's  Ld.  Cas.  95. 


INJURY    TO    FREE    PASSENGER.  35 

Supreme  Court  of  the  United  States. 

master  where  the  servant  is  in  the  course  of  his  employment,  hut  in 
the  matter  complained  of  has  acted  contrary  to  the  express  command 
of  his  master. 

The  rule  of  respondeat  superior,  or  that  the  master  shall  be  civilly 
liable  for  the  tortious  acts  of  his  servant,  is  of  universal  application, 
whether  the  act  be  one  of  omission  or  commission,  whether  negligent, 
fraudulent,  or  deceitful.  If  it  be  done  in  the  course  of  his  employment, 
the  master  is  liable ;  and  it  makes  no  difference  that  the  master  did  not 
authorize  or  even  know  of  the  servant's  act  or  neglect,  or  even  if  he 
disapproved  or  forbade  it,  he  is  equally  liable  if  the  act  be  done  in  the 
course  of  his  servant's  employment.^ 

There  may  be  found,  in  some  of  the  numerous  cases  reported  on  this 
subject,  dicta  which,  when  severed  from  the  context,  might  seem  to 
countenance  the  doctrine  that  the  master  is  not  liable  if  the  act  of  his 
sei'vant  was  in  disobedience  of  his  orders.  But  a  more  careful  examina- 
tion will  show  thaf  they  depended  on  the  question  whether  the  servant, 
at  the  time  he  did  the  act  complained  of,  was  acting  in  the  course  of 
his  emplo^^ment ;  or  in  other  words,  whether  he  was  or  was  not  at  the 
time  in  the  relation  of  servant  to  the  defendant. 

The  case  of  Sleuth  v.  Wilson'^  states  the  law  in  such  cases  distinctly 
and  correctly.  In  that  case,  a  servant  having  his  master's  carriage  and 
horses  in  his  possession  and  control  was  directed  to  take  them  to  a  cer- 
tain place ;  but  instead  of  doing  so  he  went  in  another  direction  to 
deliver  a  parcel  of  his  own,  and,  returning,  drove  against  an  old  woman 
and  injured  her.  Here  the  master  was  held  liable  for  the  act  of  the 
servant,  though  at  the  time  he  committed  the  offence  he  was  acting  in 
disregard  of  his  master's  orders  ;  because  the  master  had  intrusted  the 
carriage  to  his  control  and  care,  and  in  driving  it  he  was  acting  in  the 
course  of  his  employment.  Mr.  Justice  Erskine  remarks  in  this  case : 
"  It  is  quite  clear  that  if  a  servant,  without  his  master's  knowledge, 
takes  his  master's  carriage  out  of  the  coach-house,  and  with  it  com- 
mits an  injury,  the  master  is  not  answerable ;  and  on  this  ground, 
that  the  master  has  not  intrusted  the  servant  with  the  carriage ;  but 
whenever  the  master  has  intrusted  the  servant  with  the  control  of 
the  carriage,  it  is  no  answer  that  the  servant  acted  improperly  in  the 
management  of  it.  If  it  were,  it  might  be  contended  that  if  a  master 
directs  his  servant  to  drive  slowly,  and  the  servant  disobe3'S  his  orders 
and  drives  fast,  and  through  his  negligence  occasions  an  injury,  the 


'  See  Story  on  Ag.,  §  452;  Smith  on  Master  and  Servant,  152. 
«  9  Car.  &  P.  607. 


3G         WHEN  RELATION  OF  CARRIER  AND  PASSENGER  SUBSISTS. 

Philadelphia  and  Reading  Railroad  Company  v.  Derby. 

master  will  not  be  liable.  But  that  iu  not  the  law;  the  master,  in 
such  a  case,  will  be  liable,  and  the  ground  is  that  he  has  put  it  in  the 
servant's  power  to  mismanage  the  carriage,  by  intrusting  him  with 
it." 

Although  among  the  numerous  cases  on  this  subject  some  may  be 
found,  such  as  the  case  of  Lamb  v.  Palh^^  in  which  the  court  have  made 
some  distinctions  which  are  rather  subtile  and  astute,  as  to  when  the 
servant  may  be  said  to  be  acting  in  the  employ  of  his  master,  yet  we 
find  no  case  which  asserts  the  doctrine  that  a  master  is  not  liable  for  the 
acts  of  a  servant  in  his  employment,  when  the  particular  act  causing 
the  injury  was  done  in  disregard  of  the  general  orders  or  special 
command  of  the  master.  Such  a  qualification  of  the  maxim  of  respon- 
deat superior  would,  in  a  measure,  nullify  it.  A  large  proportion  of  the 
accidents  on  railroads  are  caused  by  the  negligence  of  the  servants  or 
agents  of  the  company.  Nothing  but  the  most  stringent  enforcement 
of  discipline,  and  the  most  exact  and  perfect  obedience  to  every  rule 
and  order  emanating  from  a  superior,  can  insure  safety  to  life  and 
property.  The  intrusting  such  a  powerful  and  dangerous  engine  as  a 
locomotive  to  one  who  will  not  submit  to  control  and  render  impUcit 
obedience  to  orders  is  itself  an  act  of  negligence,  the  causa  causans  of 
the  mischief ;  while  the  proximate  cause,  or  the  ii^sa  negligentia,  which 
produces  it  may  truly  be  said  in  most  cases  to  be  the  disobedience  of 
orders  by  the  servant  so  intrusted.  If  such  disobedience  could  be  set 
up  by  a  railroad  company  as  a  defence  when  charged  with  negligence, 
the  remedy  of  the  injured  party  would  in  most  cases  be  illusive  ;  dis- 
cipline would  be  relaxed,  and  the  danger  to  the  life  and  limb  of  the 
traveller  greatly  enhanced.  Any  relaxation  of  the  stringent  policy  and 
principles  of  the  law  affecting  such  cases  would  be  highly  detrimental 
to  the  public  safety. 

The  judgment  of  the  Circuit  Court  is  therefore  aflSrmed. 

Daniel,  J.,  dissents  from  the  decision  of  this  court  in  this  cause,  upon 
the  ground  that  the  said  railroad  company,  being  a  corporation  created 
by  the  State  of  Pennsylvania,  is  not  capable  of  pleading  or  being 
impleaded,  under  the  second  section  of  the  third  article  of  the  Consti- 
tution, in  any  courts  of  the  United  States,  and  that  therefore  the  Circuit 
Court  could  not  take  cognizance  of  the  controversy  between  that 
corporation  and  the  plaintiff  in  that  court. ^ 

Judgment  affirmed. 

I  9  Car.  &  P.  629. 

» It  is  scarcely  necessary  to  suggest  to  any  practitioner  that  the  Federal  jurisdiction 
is  thoroughly  established  against  the  view  of  Mr.  Justice  Daniel.  —  Ed. 


MAIL    AGENTS    UPON    RAILWAY    TRAINS.  37 

New  York  Court  of  Appeals. 

2.   MAIL  AGENTS   UPON   RAILWAY   TRAINS. 

NoLTON  V.  Western  Railroad  Corporation.* 

New   York  Court  of  Appeals^  1857. 

Hon.  Hiram  Denio,  Chief  Judge. 
"     Alexander  S.  Johnson,   "1 
"     George  T.  Comstock,        }-  Judges. 
"     Samuel  L.  Selden,  j 

"     John  W.  Brown, 
"     Alonzo  C.  Page, 


Judges  of  the  Supreme  Court, 


William  H.  Shankland,   ^      ""'^  ex-officw  Judges  of  the 
"     LeviF.Bowen,  J       Court  of  Appeals. 

1.  Obligation  of  Carrier  towards  Mail  Agents.  — Where  a  railway  company  transports 

a  mail  agent  upon  its  trains  in  pursuance  of  a  contract  made  between  the  company  and 
the  government,  the  relation  of  carrier  and  passenger  does  not,  in  a  strict  sense,  subsist 
between  the  company  and  the  mail  ageut.  The  carrier  is  not  under  the  high  degree  of 
care  toward  the  mail  agent  which  springs  out  of  a  contract  of  carriage,  but  is  under  a 
duty  imposed  by  law  to  transport  him  safely,  which  duly  is  violated  when  the  mail 
agent  is  injured  through  the  gross  negligence  of  the  carrier  or  his  servant.  Gross 
negligence  is  here,  however,  a  relative  term,  depending  upon  the  circumstances  of 
each  particular  case. 

2.  The  Principle  g-overning'  such  Cases. —In  all  cases  where  the  carrier  undertakes 

the  conveyance  of  a  passenger,  whether  with  or  without  compensation,  in  the  absence 
of  an  express  agreement  exempting  him  from  responsibility,  if  the  passenger  is  injured 
through  the  culpable  negligence  or  want  of  skill  of  the  carrier's  agents  the  carrier 
must  pay  damages  to  the  passenger. 

Demurrer  to  complaint:  The  complaint  stated  that  the  plaintiff 
was  a  mail  agent  on  the  defendant's  railroad,  in  the  employment  of  the 
United  States,  and  the  defendant  a  carrier  of  passengers  and  freight, 
for  fare  and  reward,  by  railroad  and  cars,  between  Greenbush  and 
Boston ;  that  defendant  was  bound  by  contract  between  it  and  the 
United  States,  for  a  stipulated  time  and  price,  to  carry  the  mails,  and 
also  the  mail  agent,  without  further  charge ;  that  in  pursuance  and  in 
consideration  of  such  contract,  the  defendant  received  the  plaintiff  into 
a  car  fitted  up  for  the  accommodation  of  the  mail  and  mail  agent ;  and 
the  plaintiff,  for  the  consideration  aforesaid,  became  and  was  a  passen- 
ger in  the  said  cars,  to  be  b}'  the  defendant  thereby  safely  and  with  due 
care  and  skill  carried  and  conveyed  to  Worcester,  which  the  defendant 
then  and  there  undertook  and  was  bound  to  do.  It  then  states  a  bodily 
injury  received  by  the  plaintiff  by  the  running- of  the  car  containing 

♦  Reported,  15  N.  Y.  444. 


38         WHEN  RELATION  OF  CAURIEK  AND  PASSENGER  SUBSISTS. 

Nolton  V.  Western  Railroad  Corporation. 

the  plaintiff  off  the  track,  and  breaking  it,  through  defectiveness  of 
raachinerv.  want  of  care,  skill,  etc.  The  defendant  demurred,  and 
after  final  judgment  for  the  plaintiff  by  the  Supreme  Court  at  General 
Term,  appealed  to  this  court.  The  case  was  submitted  on  printed 
liriefs. 

N.  Hill,  for  the  appellant ;    W.  A.  Beach,  for  the  respondent. 

Selden.  J.  —  As  the  only  objection  which  can  be  taken  to  the  com- 
plaint upon  this  demurrer  is  that  it  does  not  contain  facts  sufficient  to 
constitute  a  cause  of  action,  it  is  entirely  immaterial  whether  the  action 
be  considered  as  in  form  ex  contractu  or  ex  delicto.  The  only  question 
is,  whether,  upon  the  facts  stated,  the  plaintiff  can  maintain  an  action 
in  any  form.  The  plaintiff  cannot,  I  think,  avail  himself  of  the  contract 
between  the  defendant  and  the  government,  so  as  to  make  that  the 
gravamen  of  his  complaint  and  the  foundation  of  a  recovery.  This  is 
not  Hke  the  cases  in  which  a  third  person  has  been  permitted  to  recover 
upon  a  contract  made  by  another  party  for  his  own  benefit.  The  dis- 
tinction between  them  is  plain.  Those  were  cases  where  the  defendant, 
for  a  consideration  received  from  the  party  to  the  contract,  had  under- 
taken to  do  something  ostensibly  and  avowedly  for  the  direct  benefit  of 
the  plaintiff,  and  when  the  advantage  to  the  latter  was  one  object  of  the 
agreement.  Here  the  parties  had  no  such  intention.  In  contracting 
for  the  transportation  of  the  mail  agent,  the  parties  had  no  more  in 
view  any  benefit  or  advantage  to  him  than  if  the  contract  had  been  to 
transport  a  chattel.  The  government  took  care  of  the  public  interests, 
;md  left  those  of  the  mail  agent  to  such  protection  as  the  law  would 
afford. 

Another  distinction  is,  that  in  the  cases  referred  to,  the  party  claim- 
ing the  benefit  of  the  contract  and  seeking  to  enforce  it  was  one  who 
was  specifically  mentioned  and  pointed  out  in  the  contract  itself,  while 
here  no  one  is  designated  ;  and  to  entitle  the  plaintiff  to  recover  upon  % 
it  must  be  regarded  as  a  shifting  contract,  which  can  be  made  to  enure 
to  the  benefit  of  any  person  who  may  temporarily  assume  the  duties  of 
mail  agent.  I  think  there  is  no  precedent  for  such  a  construction  of 
such  a  contract. 

If,  then,  the  plaintiff  can  recover  at  all,  it  must  be  upon  the  ground 
of  some  implied  contract,  or  of  some  legal  obligation  or  duty  resting 
upon  the  defendant  to  exercise  proper  care  and  skill  in  the  transpor- 
tation of  passengers ;  and  the  question  is,  whether,  under  the  circum- 
stances of  this  case,  such  a  contract  is  implied,  or  such  a  duty  imposed 
for  the  benefit  of  the  plaintiff. 

It  would  seem  a  startling  proposition  that  in  all  those  cases  where 


MAIL    AGENTS    UPOX    RAILWAY    TRAINS.  39 

New  York  Court  of  Appeals. 

persons  travel  upon  railroads,  engaged  not  in  their  own  business,  but 
that  of  others,  and  where  their  fare  is  paid  by  their  employer,  they  are 
entirely  at  the  mercy  of  the  railroad  agents,  and  without  redress  if 
injured  through  their  recklessness  and  want  of  care  and  skill.  If, 
however,  railroad  companies  are  liable  in  cases  like  the  present,  it  is 
important  to  ascertain  the  precise  nature  and  extent  of  that  liability. 

In  the  first  place,  then,  it  is  clear  that  they  are  not  liable  by  virtue 
of  that  custom  or  rule  of  the  common  law  which  imposes  special  and 
peculiar  obligations  upon  common  carriers. 

Persons  engage;!  in  the  conveyance  of  passengers  are  not  common 
carriers,  within  the  meaning  of  that  rule,  which  applies  solely  to  those 
whose  business  it  is  to  transport  goods.  ^ 

If  the  complaint  in  this  case,  after  stating  that  the  defendant  was  a 
carrier  of  passengers  and  freight  from  Greenbush  to  Boston  for  hire 
and  reward,  had  simply  averred  that  the  plaintiff  became  a  passenger 
in  the  cars  of  the  defendant,  and  was  so  received  b}'^  it,  an  implied 
contract  would  have  arisen  on  the  part  of  the  defendant  to  transport 
the  plaintiff  with  all  due  diligence  and  skill ;  because  the  law  would 
have  inferred  from  those  facts  that  the  defendant  was  to  receive  a 
compensation  from  the  plaintiff  himself.  But  this  inference  is  repelled 
b}'  the  contract  set  forth,  and  the  statement  that  the  plaintiff  was 
received  as  a  passenger  under  it. 

It  was  suggested  by  the  plaintiff's  counsel,  upon  the  argument,  that  a 
contract  might  be  implied,  of  which  the  agreement  between  the  defend- 
ant and  the  government  should  form  the  consideration  and  basis.  But 
although  that  agreement  ma}'  be  resorted  to  for  the  purpose  of  showing 
that  the  plaintiff  became  a  passenger  upon  the  cars  by  the  consent  of 
the  defendant,  and  not  as  a  mere  intruder,  it  cannot,  I  think,  be  made 
available  bj^  the  plaintiff  as  the  consideration  of  an  implied  assumpsit. 
As  to  him,  that  agreement  is  res  inter  alios  acta.  He  is  not  a  party  to 
it,  or  mentioned  in  it.  His  employment  by  the  government  may  have 
taken  place  long  after  the  agreement  was  made,  and  have  had  no  refer- 
ence to  it.  If  any  contract  can  be  implied  from  that  agreement,  in  favor 
of  the  plaintiff,  it  must  be  a  contract  to  transport  him  from  place  to 
place  according  to  the  terms  of  the  agreement.  Suppose,  then,  the 
cause  of  action,  instead  of  being  for  an  injury  received  through  the 
negligence  of  the  defendant,  had  been  for  not  furnishing  the  necessary 
cars,  or  not  running  any  train,  could  the  plaintiff  recover  in  such  an 
action  ?     Would  the  defendant  be  liable  for  its  failure  to  perform  the 

1  Bac.  Abr.,  tit.  "Carriers;"  2  Kent's  Comm.,  §  40;  Story  on  Bail.,  §  49S,  and  note. 


40         WHEN  RELATION  OF  CARRIER  AND  PASSENGER  SUBSISTS. 

Nolton  V.  Western  Railroad  Corporation. 

contract,  not  only  to  the  party  with  whom  the  contract  was  made  and 
from  whom  the  consideration  was  received,  but  to  a  third  party,  not 
named  in  it,  and  from  whom  they  had  received  nothing?  No  one  would 
claim  this. 

It  may  be  said  that  the  implied  contract  with  the  plaintiff  is  limited 
to  an  undertaking  to  transport  safely,  or  with  due  care.  It  is  difficult 
to  see,  however,  how  there  can  be  a  contract  to  transport  safely  where 
there  is  no  contract  to  transport  at  all.  My  conclusion,  therefore,  is 
that  this  action  cannot  be  maintained  upon  the  basis  of  a  contract, 
express  or  implied.  It  necessaril}^  follows  that  it  must  rest  exclusively 
upon  that  obligation  which  the  law  always  imposes  upon  every  one  who 
attempts  to  do  any  thing,  even  gratuitously,  for  another,  to  exercise  some 
degree  of  care  and  skill  in  the  performance  of  what  he  has  undertaken. 
The  leading  case  on  this  subject  is  that  of  Coggs  v.  Bernard.^  There 
the  defendant  had  undertaken  to  take  several  hogsheads  of  brandy 
belonging  to  the  plaintiff  from  one  cellar  in  London,  and  to  deposit 
them  in  another ;  and  in  the  process  of  moving,  one  of  the  hogsheads 
was  staved  and  the  brandy  lost,  through  the  carelessness  of  the  defend- 
ant or  his  servants.  Although  it  did  not  appear  that  the  defendant  was 
to  receive  any  thing  for  his  services,  he  was  nevertheless  held  liable  by 
the  whole  court. 

The  principle  of  this  case  has  never  since  been  doubted,  but  there 
has  been  some  confusion  in  the  subsequent  cases  as  to  the  true  nature 
of  the  obligation,  and  as  to  the  form  of  the  remedy  for  its  violation. 
In  manj'  instances  suits  have  been  brought  upon  the  supposition  that  an 
implied  contract  arises  in  all  such  cases  that  the  party  will  exercise  due 
care  and  diligence  ;  and  the  language  of  Lord  Holt  in  Coggs  v.  Bernard  ' 
undoubtedly  gives  countenance  to  this  idea.  He  seems  to  treat  the  trust 
and  confidence  reposed  as  a  sufficient  consideration  to  support  a  promise. 
This  doctrine,  however,  can  hardly  be  considered  as  in  consonance  with 
the  general  principles  of  the  common  law.  In  addition  to  the  difficulty 
of  bringing  mere  trust  and  confidence  within  any  legal  definition  of  val- 
uable consideration,  there  is  a  manifest  incongruity  in  raising  a  contract 
to  do  with  care  and  skill  that  which  the  party  is  under  no  legal  obliga- 
tion to  do  at  all. 

The  duty  arises  in  such  cases,  I  apprehend,  entirely  independent  of 
any  contract,  either  expressed  or  implied.  The  principle  upon  which  a 
party  is  held  responsible  for  its  violation  does  not  differ  very  essentially 
in  its  nature  from  that  which  imposes  a  liability  upon  the  owner  of  a  dan- 

1  Ld.  Raym.  909. 


MAIL    AGENTS    UPON    RAILWAY    TRAINS.  41 

New  York  Court  of  Appeals. 

gerous  animal  who  carelessly  suffers  such  animal  to  run  at  large,  by 
means  of  which  another  sustains  injury ;  or  upon  one  who  digs  a  ditch 
for  some  lawful  purpose  in  a  highway,  and  carelessly  leaves  it  uncovered 
at  night,  to  the  injury  of  some  traveller  upon  the  road.  It  is  true  it 
may  be  said  that  in  these  cases  the  duty  is  to  the  public,  while  in  the 
present  case,  if  it  exists  at  all,  it  is  to  the  individual.  But  the  basis  of 
the  liability  is  the  same  in  both  cases,  viz.,  the  culpable  negligence  of 
the  party.  All  actions  for  negligence  presuppose  some  obligation  or 
duty  violated.  Mere  negligence  where  there  was  no  legal  obligation 
to  use  care,  as  where  a  man  digs  a  pit  upon  his  own  land  and  care- 
lessly leaves  it  open,  affords  no  ground  of  action.  But  where  there 
is  any  thing  in  the  circumstances  to  create  a  duty,  either  to  an  individual 
or  the  public,  any  neglect  to  perform  that  duty,  from  which  Injury  arises, 
is  actionable. 

The  present  case  falls  clearly  within  this  principle  of  liability.  There 
can  be  no  material  difference  between  a  gratuitous  undertaking  to  trans- 
port property,  and  a  similar  undertaking  to  transport  a  person.  If 
either  is  injured  through  the  culpable  carelessness  of  the  carrier,  he 
is  liable.  If,  according  to  the  case  of  Coggs  v.  Bernard  (supra)  and 
the  subsequent  cases,  an  obligation  to  exercise  care  arises  in  one  case, 
it  must  also  in  the  other. 

It  is  true  that  according  to  the  authorities  the  party,  in  such  cases,  is 
only  liable  for  gross  negligence.  But  what  will  amount  to  gross  negli- 
gence depends  upon  the  special  circumstances  of  each  case.  It  has 
been  held  that  when  the  condition  of  the  pai'ty  charged  is  such  as  to 
imply  peculiar  knowledge  and  skill,  the  omission  to  exercise  such 
skill  is  equivalent  to  gross  negligence.  Thus,  it  was  said  by  Lord 
LouGHBOUROUGH,  in  Shiells  v.  Blackbicrne,'^  that  "if  a  man  gratuitously 
undertakes  to  do  a  thing  to  the  best  of  his  skill,  when  his  situation  or 
profession  is  such  as  to  imply  skill,  an  omission  of  that  skill  is  imput- 
able to  him  as  gross  negligence."  The  same  doctrine  is  advanced  by 
Parke,  B.,  in  Wilson  v.  Brett.^  He  says:  "In  the  case  of  a  gratuitous 
bailee,  where  his  profession  or  situation  is  such  as  to  imply  the  posses- 
sion of  competent  skill,  he  is  equally  liable  for  the  neglect  to  use  it." 

I  regard  this  principle  as  peculiarly  applicable  to  railroad  companies, 
in  view  of  the  magnitude  of  the  interests  which  depend  upon  the  skill  of 
their  agents,  and  of  the  utter  powerlessness  of  those  who  trust  to  that 
skill  to  provide  for  their  own  security. 

This  case  is  not  like  that  of    Winterhottom  v.   Wright.^    There  the 

»  1  H.  Black.  168.  >  11  Mee.  &  W.  113.  »  10  Mee.  &  W.  109. 


42  WHEN  RELAllON  OF  CARRIER  AND  PASSENGER  SUBSISTS. 


Notes. 


■defendant  had  not  undertaken  to'  transport  the  plaintiff,  either  gra- 
tuitously or  otherwise.  He  was  simply  bound  b}'  contract  with  the 
government  to  furnish  and  keep  in  repair  the  carriages  used  by  the 
latter  in  transporting  the  mails.  The  relations  of  the  parties  in  that 
oase  and  in  this  are  very  different,  and  the  cases  cannot  be  consid- 
ered as  governed  by  the  same  principles.  I  entertain  no  doubt  that 
in  all  cases  where  a  railroad  company  voluntarily  undertakes  to  con- 
vey a  passenger  upon  its  road,  whether  with  or  without  compensa- 
tion, in  the  absence,  at  least,  of  an  express  agreement  exempting  it 
from  responsibility,  if  such  passenger  is  injured  by  the  culpable  negli- 
gence or  want  of  skill  of  the  agents  of  the  company  the  latter  is 
liable.  The  matter  of  compensation  may  have  a  bearing  upon  the 
degree  of  negligence  for  which  the  company  is  liable.  That  question, 
however,  does  not  arise  here.  Degrees  of  negligence  are  matters  of 
proof,  and  not  of  averment.  The  allegations  of  negligence  in  this 
complaint  are  sufficient,  whether  the  defendant  is  liable  for  ordinary 
or  only  for  gross  negligence. 

The  judgment  should  be  affirmed. 

Browtj,  J.,  also  delivered  an  opinion  for  affirmance.     All  the  judges 
concurring, 

Judgment  affirmed. 


NOTES.  t 

§  1 .  The  Relation  of  Carrier  and  Passenger  arises  how.  —  Though  the 
relation  of  carrier  and  passenj^er,  strictly  speaking,  arises  only  from  the  contract 
of  carriage,  still,  to  render  the  carrier  responsible  for  negligence,  such  contract 
need  not  be  express,  nor  actually  consummated.  Very  slight  circumstances 
will  suffice  to  sustain  an  implication  of  it.  Where  it  appeared  that  the  plain- 
tiff held  up  his  finger  to  the  driver  of  an  omnibus,  who  stopped  to  take  him 
up,  and  that,  just  as  the  plaintiff  was  putting  his  foot  on  the  step  of  the  omnibus, 
the  driver  drove  on,  and  the  plaintiff  fell  on  his  face  to  the  ground,  the  court 
held  that  this  was  evidence  to  go  to  the  jury  in  support  of  the  declaration,  which 
set  up  a  contract  for  carriage,  as  the  stopping  of  the  omnibus  implied  a  consent 
to  take  the  plaintiff  up  as  a  passenger.'  In  another  case,  which  was  an  action 
for  the  loss  of  baggage,  the  plaintiff 's  possession  of  a  baggage-check,  and  the 
testimony  of  the  baggage-master  that  when  required  by  passengers  he  put 
checks  on  their  baggage  and  gave  duplicates  to  the  passengers,  were  held  to  be 
sufficient  evidence  that  the  plaintiff  was  a  passenger  on  the  cars,  and  that  he  had 
baggage  checked  on  that  occasion.* 

1  Brien  v.  Bennett,  8  Car.  &  P.  724.  «  Davis  v.  Cayuga  etc.  R.  Co.,  10  How.  Pr.  330. 


HOW    THE    RELATION    ARISES.  43 


Gratuitous  Carriage. 

§  2.  Consummation  of  the  Contract  not  necessary.  —  It  is  not  necessary  to 
the  existence  of  tlie  relation  of  carrier  and  passenger  that  the  contract  should 
be  actually  consummated,  either  by  the  payment  of  fare,  or  entry  into  the  cars  or 
vessel  of  the  carrier.  Going  into  the  depot  or  waiting-room  of  the  defendant 
and  waiting  for  the  means  of  conveyance  with  a  bond  fide  intention  of  becoming 
a  passenger  is  sufficient  to  cast  upon  the  defendant  the  duty  of  treating  the 
plaintiff  as  a  passenger.'  In  an  Iowa  case,  the  plaintiff  entered  the  office  or 
waiting-room  provided  by  the  defendant  for  passengers,  and  informed  the  depot 
or  ticket  agent  of  her  desire  to  become  a  passenger.  She,  in  good  faith,  placed 
herself  under  his  direction,  and  he  directed  her  as  to  the  manner  in  which  she 
was  to  get  on  a  caboose-car  on  which  she  was  to  take  passage.  This  was  held 
sufficient  to  justify  the  jury  in  finding  that  the  relation  of  passenger  and  carrier 
existed.''  Where  one  goes  upon  a  passenger  steamboat,  in  good  faith,  to  take 
passage  thereon,  he  is  there  in  the  character  and  relation  of  a  passenger,  and  the 
■owner  of  the  boat  owes  to  him  the  duty  of  a  carrier  of  passengers,  although  no 
fare  has  been  paid.'  The  whole  matter  seems  to  depend  upon  the  intention  of 
the  person  at  the  time  he  enters  the  boat,  or  cars,  or  waiting-room  of  the 
defendant.  In  Illinois  it  has  been  held  that  where  a  steamboat  lauds  at  one  of 
its  usual  stopping-places  for  the  purpose  of  taking  on  freight  and  passengers,  it 
is  not  a  presumption  of  law  that  every  person  who  goes  on  board  does  so  as  a 
passenger  unless  he  notifies  an  officer  of  the  boat  to  the  contrary,  so  as  to  relieve 
the  officers  from  the  duty  of  giving  such  as  do  not  come  aboard  as  passengers 
proper  time  and  facilities  for  getting  ashore.*  But  though  the  relation  depends 
to  a  great  extent  upon  the  intention  of  the  person  seeking  to  become  a  passenger, 
yet  if,  after  having  violated  the  regulations  of  the  company  by  refusing  to 
pay  his  fare,  or  by  conducting  himself  improperly,  he  has  been  rightly  ejected 
therefor  from  the  cars,  he  cannot  by  climbing  again  into  the  cars  and  offering 
to  pay  his  fare  restore  the  relation  of  carrier  and  passenger.  He  has  violated 
the  contract  for  carriage,  on  his  part,  and  he  has  no  right  to  insist  that  it  shall 
be  performed  on  the  part  of  the  carrier.* 

§3.  Persons  riding  gratuitously.  —  The  relation  of  carrier  and  passenger 
certainly  does  not  exist  between  a  railroad  company  and  one  who  secretes  him- 
self on  their  train  with  a  view  of  fraudulently  obtaining  a  free  ride,  nor  between 
the  owners  of  a  vessel  and  a  "stowaway."  This  doctrine  extends  further,  and 
includes  the  case  of  one  who  knowingly  induces  the  conductor  of  a  train  to 
violate  the  regulations  of  the  company  and  disregard  his  obligations  of  fidelity 
to  his  employer.  Therefore,  where  a  man  and  his  vnfe  persuaded  the  conductor 
to  permit  them  to  ride  free,  knowing  that  it  was  contrary  to  the  rules  of  the 
company,  and  he  was  killed  in  a  collision,  the  court  held,  in  an  action  by  the 
wife  for  damages,  that  the  company  did  not  owe  him  the  duty  of  a  carrier  to  a 


'■  Gordon  v.  Grand  Street  etc.  R.  Co.,  40  <  Keokuk   Packet   Co.   v.  Ileury,  50   III. 

Barb.  546.  264. 

2  Allendert;.  Chicago  etc.  R.  Co.,  37  Iowa,  '  O'Brien  v.  Boston  etc.  R.  Co.,  15  Gray, 

264.  20,  ante,  p.  22 ;  Nelson  v.  Long  Island  IX.  Co.,  7 

'  Cleveland  v.  New  Jersey  Steamboat  Co.,  Hun,  140;  The  People  v.  Jillson,  3  Park.  Cr. 

68  N.  Y.  .306.    See  also  Hurt  v.  Southern  R.  Cas.  234 ;  Hibbard  v.  New  York  etc.  R.  Co.,  15 

Co.,  40  Miss.  391.  N.  Y.  455. 


■14         WHEN  RELATION  OF  CARRIEIl  AND  PASSENGER  SUBSISTS. 


Notes. 


passenger.'  In  a  case  in  which  it  appeared  that  a  cattle-shipper  fraudulently 
obtained  a  "drover's  pass"  for  his  wife  from  the  agent  of  a  railroad  company 
by  representing  that  she  was  the  owner  of  a  part  of  the  stock,  whereas  the  fact 
was  that  she  was  neither  an  owner  nor  had  charge  of  any  part  of  the  stock ;  and 
further,  that  when  the  pass  was  presented  the  conductor  refused  to  honor  it,  and^ 
upon  her  declining  to  pay  the  fare,  handed  her,  without  violence  or  incivility, 
from  the  train,  whereupon  the  fare  was  paid  and  plaintiffs  reentered  the  train 
and  proceeded  upon  their  journey ;  the  court  held  that  the  relation  of  carrier  and 
passenger  did  not  exist  as  to  the  wife.^  So  held,  too,  in  the  case  of  a  person 
travelling  upon  a  pass  issued  to  another  person  which  was  not  transferable,  and 
passing  himself  for  the  person  therein  named.'  But  the  simple  fact  that  an 
agent  of  the  carrier  violates  his  duty  and  invites  a  person  to  ride  free,  without 
a  collusion  on  his  part  with  the  agent  to  defraud  the  carrier,  will  not  operate  so 
as  to  deprive  him  of  his  remedy  as  a  passenger,  if  he  is  injured  through  the  care- 
lessness of  the  carrier's  agents.*  In  an  English  case  it  appeared  that  the  defend- 
ant, a  railroad  corporation,  was  required  by  its  charter  regulations  to  run  certain 
trains  upon  which  children  under  three  years  of  age  were  permitted  to  ride  free 
and  half -fare  was  charged  for  children  between  three  and  twelve  years  of  age. 
The  plaintiff  was  thi'ee  years  and  three  months  of  age,  and  was  riding  upon  the 
train  in  charge  of  his  mother  (who  took  a  ticket  for  herself  alone),  and  was 
injured  through  the  negligence  of  the  defendants.  The  defence  was  that  he  was 
not  a  passenger ;  but  the  court  held  otherwise.^  The  carrier  does  not,  by  consent- 
ing to  carry  a  person  gratuitously,  relieve  himself  of  the  responsibility  which 
the  law  imposes  upon  him  with  reference  to  passengers  generally.  Where  the 
assent  to  his  riding  free  has  been  legally  and  properly  given,  he  is  entitled  to  the 
same  degree  of  care  as  if  he  paid  his  fare.*  Thus,  a  guest  of  the  president  of  a 
railroad  company,  riding  by  his  invitation  in  a  special  car,  was  injured  in  a  colli- 
sion. The  court  held  that  the  fact  that  he  paid  nothing  for  his  passage  had  no 
effect  upon  the  duty  which  the  company  owed  him  as  a  passenger.'  Where  a. 
person  was  carried  free  upon  the  defendant's  vessel  in  consideration  of  the  fact 
that  he  was  a  "  steamboat-man,"  it  being  the  custom  to  carry  such  persons  free, 
the  court  held,  in  an  action  for  personal  injuries  by  the  negligence  of  the  defend- 
ant's agents,  that  the  circumstance  of  free  carriage  did  not  deprive  him  of  the 
right  of  redress  enjoyed  by  other  passengers.*  Nor,  after  it  has  once  had  its 
inception,  will  the  relation  of  carrier  and  passenger  be  affected  by  the  circum- 
stance that  the  agent  of  the  carrier,  in  consideration  of  the  fact  that  the  passen- 
ger has  been  injured,  returns  the  money  paid  for  passage.* 

1  Toledo  etc.  R.  Co.  v.  Brooks,  81  111.  245.  &  S.  327;  s.  c   L.  R.  2  Q.  B.  442;  36  L.  J.  (Q. 

See  also  Chicago  etc.  R.  Co.  v.  Michie,  83  111.  B.)  201;  15  Week.  Rep.  863;  16  L.  T.  (N.  S.) 

427.  320. 

9  Brown  v.  Missouri  etc.  R.  Co.,  64  Mo.  536.  e  Todd  v.  Old  Colony  R.  Co.,  3  Allen,  18; 

3  Toledo  etc.  R.  Co.  v.  Beggs,  85  111.  80.  a.  c.  7  Allen,  207;  Rose  v.  Des  Moines  Valley 

But  see  Great  Northern  R.  Co.  v.  Harrison,  R.  Co.,  39  Iowa,  246;  Jacobus  v.  St.  Paul  etc. 

23  L.  J.  (Exch.)  308;    s.  c.  12  C.  B.  576;   26  R.  Co.,  20  Minn.  125;  s.  c.  1  Cent.  L.  J.  375. 

Eng.  Law  &  Eq.  443.  Contra,  Kinney  v.  Central  R.  Co.,  34  N.  J.  L. 

*  Wilton  V.  Middlesex R.  Co.,  107  Mass.  108;  513. 

s  c.  125  Mass.  130;  Pittsburgh  etc.  R.  Co.  v.  '■  Phila.  etc.  R.  Co.  v.  Derby,  14  How.  46S, 

Caldwell,  74  Pa.  St.  421 ;  Wa^liburn  v.  Nash-  ante,  p.  31. 

viUe  etc.  R.  Co.,  3  Head,  638.  8  str.  New  World  r.  King,  16  How.  469. 

*  Austin  V.  Great  Western  R.  Co.,  8  Best  »  Packet  Co.  i;.  Clough,  20  Wall.  528. 


GUATUITOUS    CAUKIAGE.  45 


Person  carrying  on  Business  on  Carrier's  "Vehicle. 

§  4.  What  constitutes  Gratuitous  Carriage.  —  It  is  not  necessary  that  a 
passenger's  fare  sliould  be  paid  in  money  to  constitute  him  a  passenger  for  hire. 
If  the  company  receives  any  benefit  or  advantage  in  connection  with  his  passage, 
it  is  sufficient.!  Thus,  where  a  person  was  negotiating  with  a  railroad  company 
respecting  tlie  introduction  and  use  upon  their  ti'ains  of  a  patent  car-coupling, 
and  went  at  the  request  and  expense  of  the  company  to  a  point  on  its  road  to  see 
one  of  its  officers  in  relation  to  the  matter,  and  a  pass  was  furnished  by  the 
company,  it  was  held,  in  an  action  for  an  injury  I'eceived  during  the  transporta- 
tion, that  he  was  a  passenger  for  hire.^  Nor  is  a  person  who  accepts  a  drover's 
pass,  given  to  him  in  consideration  of  the  shipment  of  cattle,  in  order  that  he 
may  accompany  them  to  their  destination,  a  gratuitous  passenger.' 

§  5.  Persons  carrsang  on  Business  on  the  Carrier's  Vehicles  or  Vessels.  — 
Persons  who  are  permitted  by  carriers  to  travel  upon  their  trains  or  boats  for  the 
purpose  of  carrying  on  a  lawful  business,  either  for  themselves  or  for  another, 
are  very  much  in  the  same  position  as  persons  permitted  to  ride  free.  They  pay 
nothing  for  their  passage,  yet  they  are  entitled  to  recover  damages  for  a  negli- 
gent injury,  the  same  as  passengers  carried  for  hire.  Thus,  a  mail  agent  for 
whose  carriage  together  with  the  mail,  in  a  car  specially  fitted  up  for  that 
purpose,  the  government  had  contracted  with  the  defendant,  a  railroad  com- 
pany, and  who  himself  paid  nothing  for  his  carriage,  was  held  to  be  a  passenger 
in  so  far  that  the  carrier  was  liable  in  damages  for  a  negligent  injury.  An  action 
by  such  a  person  for  personal  injuries  through  negligence  is  maintainable,  not 
upon  any  theory  of  subrogation  to  the  contract  with  the  government,  but  in 
view  of  the  duty  which  the  law  imposes  upon  the  carrier.*  Such,  too,  is  the  posi- 
tion of  an  express  messenger  sent  along  in  charge  of  the  matter  of  an  express 
company  who  have  contracted  with  the  carrier  for  the  carriage  of  such  matter 
and  their  agent  in  charge  of  it,*  This  rule  has  been  extended  to  include  a  person 
temporarily  supplying  the  place  of  the  express  messenger.'^  "There  is  no  pro- 
vision in  the  contract,"  said  Miller,  J.,  of  the  New  York  Court  of  Appeals, 
"which  prevents  the  employment  by  the  express  company  of  any  person  as  a 
messenger,  or  in  the  place  of  such  messenger  when  for  any  reason  he  is  pre- 
vented from  attending  to  his  duties.  The  intestate,  therefore,  was  lawfully  upon 
the  cars,  and  entitled  to  the  same  protection  as  the  messenger  whose  place  he 
filled." '  But  where  an  express  messenger  brings  a  stranger  into  an  express-car 
for  the  purpose  of  teaching  him  the  duties  of  the  route,  in  order  that  he  may 
supply  his  place  during  his  absence,  and  introduces  him  to  the  conductor  as  a 

1  Railway  Co.  v.  Stevens,  95  U.  S.  655;  Mo.  536;  Indianapolis  etc.  R.  Co.  r.  Beaver, 
Railroad  Co.  v.  Lockwood,  17  Wall.  .'^T;  41  Ind.  493;  Pennsylvania  R.  Co.  v.  Heuder- 
Smith  V.  New  York  etc.  R.  Co.,  24  N.  Y.  222;        son,  51  Pa.  St.  315. 

Cleveland  etc.  R.  Co.    v.    Curran,    19   Ohio  t  Nolton  v.  Western  R.  Corp.,  15  N.  Y.  444, 

bt.  1.  ante,  p.  37;  Collett  v.  London  etc.  R.  Co.,  15 

2  Railway  Co.  v.  Stevens,  95  U.  S.  655.  Jur.  lO.'iS;  s.  c.  20  L.  J.  (Q.  B.)  411;  16  Q.  B. 

3  Railroad  Co.  i).  Lockwood,  17  Wall.  357;  984;  Hammond  v.  North-Eastern  R.  Co.,  6 
Smith  V.  New    York  etc.  R.  Co.,  24  N.   Y.  So.  Car.  130. 

222;  s.  c.  29  Barb.  132;  Cleveland  etc.  R.  Co.  '■>  Yeomans  v.  Contra  Costa  Steam   Nav. 

V.  Curran,  19  Ohio  St.  1 ;   Ohio  etc.  R.  Co.  v.  Co.,  44  Cal.  71. 

.>^elby,  47  Ind.  471 ;  Flinn  v.  I'hilii.  etc.  R.  Co.,  «  Blair  v.  Erie  R.  Co.,  66  N.  Y.  313. 

1  Houst.  469;  Graham  v.  Pacitic  R.  Co.,  66  '  /d.  318. 


46         WHEN  RELATION  OF  CARRIER  AND  PASSENGER  SUBSISTS. 


Notes. 


messenger  learning  the  run,  who  thereupon  demands  no  fare  of  him,  when  in  fact 
such  person  is  not  an  employee  of  the  express  compam^,  and  is  not  present  in  the 
car  devoted  to  tlieir  use  by  any  authority  of  theirs,  the  person  so  introduced  by 
the  express  messenger  into  the  car  is  not  a  passenger,  but  a  trespasser,  and 
cannot  demand  the  degree  of  care  for  his  safety  which  the  law  requires  the  rail- 
road compaii.  to  exercise  toward  its  passengers. ^  A  person  leasing  the  bar  upon 
a  steamboat,  for  the  purpose  of  selling  liquors,  cigars,  etc.,  and  paying  for  the 
privilege  a  certain  sum  per  month,  is  a  passenger,  notwithstanding  he  does  not 
pay  any  thing  specifically  as  passage-money.^  So,  where  a  railroad  company,  in 
consideration  of  the  payment  to  them  by  a  person  of  a  certain  sum  of  money  per 
3'ear  in  quarterly  instalments,  and  of  his  agreement  to  supply  the  passengers  on 
one  of  their  trains  with  iced  water,  issued  season-tickets  to  him  quarterly  for 
his  passage  on  any  of  their  regular  trains,  and  permitted  him  to  sell  popped  corn 
on  all  their  trains,  it  was  held  that  his  relation  to  them  while  travelling  on  their 
road  under  this  contract  was  that  of  a  passenger  and  not  that  of  a  servant.^ 
But  a  boy  selling  newspapers  on  the  street,  and  accustomed  to  board  street  cars, 
with  the  acquiescence  of  the  servants  of  the  company,  for  the  purpose  of  sup- 
plying the  passengers  with  papers,  is  not  a  passenger,  and  the  company  is  not 
charged  with  the  duty  of  looking  after  his  safety,  or  of  seeing  that  he  does  not 
run  into  danger,  or  of  stopping  or  slackening  the  speed  of  the  car  for  him  to- 
leave  it,  whether  requested  so  to  do  or  not.* 

§6.  Employees  of  the  Carrier.  —  Under  what  circumstances  an  employee 
travelling  on  his  employer's  conveyance  will  stand  in  the  relation  of  passenger 
towards  him  is  a  question  upon  which  there  seems  to  be  a  want  of  unanimity 
among  the  authorities.  It  would  be  useless  to  attempt  to  reconcile  the  decisions 
on  the  subject.  We-can  but  notice  them,  leaving  it  to  the  reader  to  decide  which 
are  most  in  harmony  with  the  general  doctrine  of  master  and  servant,  of  which 
this  subject  is  but  a  branch.  The  rules  which  give  point  to  the  distinction  are 
these :  If  the  status  of  the  person  is  that  of  a  passenger,  the  carrier  is  answerable 
to  him  for  any  injury  happening  through  very  slight  negligence,  or  a  want  of  the 
very  highest  degree  of  care ;  *  whereas  if  his  status  is  that  of  servant,  the  carrier 
owes  to  him  but  ordinary  care.^  Again,  if  he  is  a  passenger,  the  carrier  is 
answerable  to  him  for  injuries  done  to  him  by  the  servants  of  the  latter,  in  con- 
formity with  the  rule  of  respondeat  superior.''  But  if  he  is  a  servant  of  the  carrier, 
this  rule  does  not  apply  so  as  to  make  the  latter  responsible  for  injuries  done  to 
him  by  other  servants  of  the  carrier,  engaged  in  the  same  common  employment 
with  him,  and  of  such  a  grade  as  to  be  denominated  "fellow-servants"  of  his.* 

In  a  case  in  Pennsylvania,  the  plaintiff  was  a  common  laborer  employed  with 
other  hands  in  digging  and  in  filling  certain  gravel-cars  which  were  used  by  the 
defendants  in  transporting  gravel  along  their  railroad  for  the  purpose  of  repairing 
it.    The  hands  boarded  at  a  place  about  four  miles  distant  from  their  principal 

»  Union  Pacific  R.  Co.  v.  Nichols,  8  Kan.  *  Fleming  v.  Brooklyn  City  R.  Co.,  1  Abb. 

505 ;  s.  c.  4  Ch.  Leg.  N.  82.  N.  C.  433. 

2  Yeomans  v.  Contra  Costa  Steam  Nav.  ^  post,  Chap.  V. 

Co.,  U  Cal.  71.  6  2  Thomp.  on  Neg.,  p.  972. 

8  The  Commonwealth  v.  Vermont  etc.  R.  ?  Id.,  p.  861. 

Co.,  108  Mass.  7.  «  Jd.,  p.  969. 


GRATUITOUS    CARRIAGE.  47 


Carrier's  Employees. 

work,  and  it  was  visual  for  them  to  ride  to  and  from  their  work  in  the  gravel-cars. 
While  he  and  others  were  going  to  their  work,  the  accident  complained  of  hap- 
pened by  the  dumping  of  one  of  the  cars  and  throwing  the  plaintiff  out  on  the 
road.  It  was  the  understanding  that  the  hands  were  to  ride  on  the  gravel-train 
to  and  from  their  work  and  at  their  work.  He  neither  paid  his  fare  nor  gave  any 
thing  out  of  his  wages  for  his  passage  to  and  fro.  It  was  held  that  he  was 
simply  a  servant,  with  the  privilege  of  riding,  as  part  of  his  business,  in  the 
gravel-train,  which  was  one  of  the  instruments  of  his  work,  and  that  he  was  no 
more  a  passenger  than  is  a  coachman  or  carter  when  in  the  employment  of 
his  master.^ 

In  another  case,  where  the  accident  occurred  by  reason  of  a  collision  with  a 
hand-car  by  the  gravel-train  upon  which  the  plaintiff  was  riding,  the  relations  of 
the  plaintiff  and  defendants  were  almost  identical  with  those  of  the  parties  to  the 
case  just  stated.  The  plaintiff  was  a  common  laborer,  employed  in  repairing  the 
defendants'  road-bed  at  a  place  several  miles  from  his  residence.  Each  morning 
and  evening  he  rode  with  other  laborers  to  and  from  the  place  of  labor,  on  the 
gravel-train  of  the  defendants.  This  was  done  with  the  consent  of  the  company 
and  for  mutual  convenience,  no  compensation  being  paid  directly  or  indirectly 
by  the  laborers  for  the  passage,  and  the  company  being  under  no  contract  to 
convey  the  laborers  to  and  from  their  work.  It  was  urged  that  the  plaintiff  was 
not  in  the  employment  of  the  defendants  at  the  time  the  injury  was  received,  and 
that  he  might  properly  be  considered  as  a  passenger,  and  that  the  defendants,  as 
respecting  him,  were  carriers  for  hire.  But  the  court  said :  "  It  seems  to  us,  in 
no  view  of  the  case  can  this  action  be  maintained.  If  the  plaintiff  was,  by  the 
contract  of  service,  to  be  carried  by  the  defendants  to  the  place  for  his  labor, 
then  the  injury  was  received  while  engaged  in  the  service  for  which  he  was 
employed,  and  so  falls  within  the  ordinary  cases  of  serv^ants  sustaining  an  injury 
from  the  negligence  of  other  servants.  If  it  be  not  properly  inferable  from  the 
evidence  that  the  contract  between  the  parties  actually  embraced  this  transpor- 
tation to  the  place  of  labor,  it  leaves  the  case  to  stand  as  a  permissive  privilege 
granted  to  the  plaintiff,  of  which  he  availed  himself  to  facilitate  his  labors  and 
service,  and  is  equally  connected  with  it  and  the  relation  of  master  and  servant, 
and  therefore  furnishes  no  ground  for  maintaining  this  action."  The  court 
then  likened  the  case  to  that  of  a  wood-chopper  riding  for  his  own  convenience 
upon  his  employer's  wagon,  driven  by  another  servant,  who  overturns  it  by  his 
negligence.'' 

In  a  case  similar  to  the  two  just  cited,  which  we  will  for  identification  call 
"  gravel-train  cases,"  it  was  argued  by  the  plaintiff's  counsel  that,  by  the  arrange- 
ment between  the  plaintiff  and  the  defendant,  the  plaintiff  was  to  be  taken  home 
by  the  defendant  on  the  gravel-train  at  night;  that  his  day's  work  was  completed 
when  the  last  load  of  gravel  was  deposited,  and  that  he  was  under  no  further 
obligation  to  do  any  thing  for  the  company;  that  carrying  him  home  was  a 
service  to  be  performed  by  the  company  in  consideration  of  the  labor  previously 
done,  and  constituted  a  part  of  his  wages ;  that  it  was  entirely  optional  with 
him  to  avail  himself  of  this  service  or  not ;  that  while  upon  the  train  when  the 


»  Ryan  v.  Cumberland  Valley  R.  Co.,  23  *  Gillshannon  v.  Stony  Brook  R.  Co.,  10 

ra.  St.  384.  Cush.  228,  231. 


48         WHEX  RELATION  OF  CAURIEU  AND  PASSENGER  SUBSISTS. 


Notes. 


accident  occurred,  which  was  during  the  trip  home  after  the  day's  work  was 
done,  he  was  a  passenger.  The  court  thought  that  it  was  not  entirely  clear  that, 
unrler  the  agreement  with  the  plaintiff,  the  defendants  might  not  insist  upon  his 
returning  with  the  train  at  night,  but  said  that,  even  conceding  this,  it  did  not 
follow  "that  while  actually  returning  to  the  city  with  the  train  he  was  not  the 
servant  of  the  company.  If  he  was  a  mere  passenger,  he  was  not  bound  to  do 
any  thing  to  facilitate  the  return  of  the  train.  If  an  emergency  arose  requiring 
the  use  of  the  brakes,  he  might  refuse  to  raise  his  hand.  If  an  obstruction  was 
met  with  upon  the  track,  he  might  fold  his  arms  until  the  company  removed  it; 
and  what  he  might  do  m  this  respect,  every  other  hand  returning  to  the  city 
under  similar  circumstances  might  also  do.  Such  could  not,  I  think,  have  been 
the  true  relation  between  the  parties.  The  plaintiff  was  employed  by  the 
defendants  as  a  day-laborer.  He  was  to  be  taken  up  at  the  city,  where  he  lived, 
in  the  morning,  and  set  down  there  at  night ;  and  he  should,  I  think,  be  regarded 
as  having  been,  during  the  entire  interval,  the  servant  of  the  company,  and  bound 
as  such  to  render  aid,  if  necessary,  in  promoting  the  passage  of  the  train  both  to 
and  from  the  city.    This  is  decisive  of  the  case."  ^ 

And  in  an  English  case,  where  the  plaintiff,  who  was  emploj'ed  by  a  railway 
company  as  a  laborer  to  assist  in  loading  what  was  called  a  "pick-up  train" 
with  materials  left  by  plate-layers  and  others  upon  the  line,  and  where  one  of  the 
terms  of  his  engagement  was  that  he  should  be  carried  by  the  train  from  Bir- 
mingham (where  he  resided  and  whence  the  train  started)  to  the  spot  at  which  his 
work  for  the  day  was  to  be  done,  and  be  brought  back  to  Birmingham  after  his 
day's  work  was  done,  it  was  held  that  while  travelling  to  Birmingham  at  the  end 
of  the  day,  he  did  not  hold  the  relation  of  a  passenger  to  the  railway  company .2 
So,  also,  it  was  held  that  a  person  employed  by  a  railroad  company  by  the  day,  to 
work  as  a  carpenter  in  repairing  fences  along  the  line  of  the  road,  in  repairing 
bridges,  making  switch-frames,  and  other  similar  work,  and  who  received  permis- 
sion, at  the  time  he  was  engaged,  to  ride  to  his  work  without  paying  fare,  could 
not  maintain  an  action  against  the  company  for  injuries  occasioned  to  him  while 
being  so  carried,  by  the  negligence  of  their  servants.-' 

In  Indiana  the  question  we  are  now  considering  came  up  in  a  case  where  a 
carpenter  was  employed  by  a  railroad  company  to  frame  and  build  a  bridge  across 
a  certain  creek  on  their  road.  While  he  was  thus  engaged  in  the  work,  the 
company  directed  him  to  proceed  in  their  cars  to  another  place  and  assist  in 
loading  timbers  for  the  bridge ;  and  while  riding  on  their  cars  as  he  was  directed, 
he  was  injured  by  the  negligence  of  the  defendants'  servants.  The  court  held 
that  at  the  time  of  the  injury  the  plaintiff  was  a  passenger,  placing  it  upon  the 
ground  that  his  business  of  house-carpenter,  as  applied  to  the  erection  of  a 
bridge,  did  not  even  remotely  link  him  with  the  careless  management  of  that 
particular  train.  He  had  no  particular  duties  the  neglect  of  which  contrib- 
uted to  the  injury  complained  of,*    This  case  was  followed  by  another  in  the 

1  Russell  V.  Hudson  River  R.  Co.,  17  N.  Y.  s  Seaver  v.  Boston  etc.  R.  Co.,  U  Gray, 
134.  466. 

2  Tunney  v.  Midland  R.  Co.,  L.  R.  1  C.  P.  <  Gillenwater  v.  Madison  etc.  R.  Co.,  6 
291;  s  c.  12  Jur.  (N.  s.)  691.  See  also  Hutch-  Ind.  339.  See  this  and  the  foregoing  case 
inson  v.  York  etc.  R.  Co.,  6  Eng.  Rail.  Cas.  disapproved  in  Columbus  etc.  R.  Co.  v.  Ar- 
6S0.  nold,  31  Ind.  182. 


carrier's  employees.  49 


Persons  attending  Passengers. 


same  State,  where  the  facts  were  almost  identical  with  the  "gravel-train  cases  " 
heretofore  stated ;  and  upon  the  authority  of  it  it  was  held  that  a  laborer  return- 
ing to  his  home  on  board  of  a  gravel-train  at  night  after  his  day's  work  was 
done,  paying  no  fare,  either  directly  or  indirectly,  was  a  passenger  at  that 
time.i 

A  case  in  Pennsylvania  reviews  a  number  of  the  authorities,  and  distinguishes 
some  of  them.  The  plaintiff  was  a  journeyman  carpenter  in  the  employ  of  the 
defendants,  a  railroad  company,  and  was  engaged  in  repairing  a  bridge  about 
fifteen  miles  from  where  the  plaintiff  lived.  The  accident  by  which  he  was 
injured  occurred  while  he  was  returning  from  his  work  to  his  home,  on  a  train, 
at  night.  The  plaintiff  was  not  hired  to  pursue  his  work  on  the  train,  but  was 
carried  in  consideration  of  a  reduction  in  the  price  of  his  wages.  When  his 
day's  work  was  done  he  was  no  longer  in  the  service  of  the  company,  but  was 
iree  to  go  or  to  stay ;  and  when  he  travelled,  he  in  effect  paid  his  fare  out  of  his 
wages,  for  he  was  hired  at  a  less  price  per  day  than  if  he  had  paid  his  fare  in 
money.  It  was  held  that  while  so  travelling  to  and  from  his  work  he  was  a 
passenger.^ 

All  of  the  cases  thus  far  noticed  on  this  subject  have  been  cases  where  the 
employee  was  travelling  to  or  from  his  work ;  but  the  question  has  presented 
itself  where  the  employee  has  been  travelling  on  his  own  business  on  his  em- 
ployer's conveyance.  It  would  seem  that  in  such  a  case  the  employee  would 
stand  towards  the  carrier  in  the  relation  of  passenger.' 

§  7.  Persons  attending  Passengers  arriving  or  departing.  —  Of  course,  a 
person  who  goes  to  a  train  or  boat  for  the  purpose  of  seeing  a  passenger  off,  or 
to  assist  or  welcome  one  arriving,  cannot  be  regarded  as  a  passenger.  Yet  it 
seems  that  he  ought  not  to  be  held  to  be  a  mere  trespasser  in  entering  the  con- 
veyance, depot,  or  wharf  of  the  carrier.  But  it  was  held  in  a  Massachusetts 
case,*  where  a  lady  had  conducted  and  assisted  into  the  cars  her  aunt,  who  was 
aged  and  infirm  and  affected  by  disease  of  the  heart,  and  unable  to  enter  the 
cars  without  assistance,  and  where,  after  she  had  left  her  aunt  and  was  leaving 
the  cars,  she  was,  while  attempting  to  step  on  the  platform  after  the  cars  had 
commenced  to  move,  precipitated  under  the  wheels  and  injured,  that  she  had 
no  cause  of  action.  The  reason  was  that  "the  rules  and  regulations  prescribed 
by  a  railroad  company  in  relation  to  the  departure  of  trains  and  for  giving 
notice  to  passengers  do  not  extend  to  persons  who  are  not  passengers,  with 

1  Fitzpatrick  v.  New  Albany  etc.  R.  Co.,  7  are  compelled  to  employ,  that  the  pilot  shall 
Ind.  436.  take  upon  himself  the  risk  of  injury  from 

2  O'Donnelli;.  Allegheny  etc.  R.  Co.,  59  Pa.  the  negligence  of  the  ship-owners'  servants. 
St.  239;  8.  c.  50  Pa.  St.  490.  See  also  Cum-  Smith  i;.  Steele,  L.  R.  10  Q.  B.  125. 
berland  etc.  R.  Co.  v.  Myers,  55  Pa.  St.  288;  3  ohio  etc.  R.  Co.  v.  Muhling,  30  111.  9. 
Kansas  Pacific  R.  Co.  v.  Salmon,  11  Kan.  83;  But  see  Higgins  v.  Hannibal  etc.  R.  Co.,  36 
s.  c.  14  Kan.  512.  For  cases  of  contractors'  Mo.  418.  In  the  days  of  slavery,  it  was  hekl 
workmen  being  carried  on  train,  see  Torpy  that  railroad  companies  were  legally  respon- 
V.  Grand  Trunk  R.  Co.,  20  Upper  Canada  Q.  sible  for  injuries  to  slaves  hired  to  aid  in 
B.  446;  Sheerman  v.  Toronto  etc.  R.  Co.,  34  conducting  trains,  where  the  injury  was  the 
Upper  Canada,  Q.  B.  451;  and  Graham  v.  resultof  carelessness  of  their  agents.  Louis - 
Toronto  etc.  R.  Co.,  23  Upper  Canada  C.  P.  ville  etc.  R.  Co.  v.  Yandell,  17  H.  Mon.  586. 
641.  There  is  no  implied  contract  between  '' Lucas  j;.  New  Bedford  etc.  R.  Co.,  6  Gray, 
the  owners  of  a  ship  and  a  pilot  whom  they  64. 


50         WHEN  KELATION  OF  CARRIER  AND  PASSENGER  SUBSISTS. 


Notes. 


or  without  compensation,  or  who  are  on  the  premises  without  request  or 
instance  of  the  company,  and  therefore  the  omission  to  comply  with  such 
regulation  is  no  ground  of  complaint  by  one  who  is  not  a  passenger,  if,  under 
the  circumstances,  the  company  used  ordinary  care.'"  And  it  was  further  said : 
"Persons  entering  the  cars  wiio  are  not  passengers,  and  without  the  request  or 
instance  of  the  company,  are  bound  to  know  the  time  of  departure  (if  such  time 
be  fixed,  and  reasonable  public  notice  given  thereof  J,  and  to  leave  the  cars  in 
such  season  before  the  time  so  fixed  as  would  enable  them  to  get  out  with  care 
before  the  cars  are  set  in  motion.  With  the  arrival  of  time  fixed  for  the  depart- 
ure of  the  cars,  the  implied  license  or  permission  ceased,  and  with  it  the  liability 
of  the  defendants  except  in  case  of  misfeasance  or  gross  negligence."  ^  Whether 
the  usual  signals  for  leaving  had  been  given  or  not  was  treated  as  an  inquiry  of 
no  importance,  on  the  gi-ouud  that  the  lady  (who  escorted  her  aunt  into  the  cars) 
was  where  she  had  no  right  to  be,  namely,  on  the  step  of  the  car. 

In  a  case  in  Missouri,  where  the  facts  were  similar,  we  think  the  better  view  of 
the  law  was  taken.  The  plaintiff  was  injured  in  attempting  to  leave  a  train  to 
which  he  had  attended  his  sister-in-law,  with  her  infant  child,  at  night,  and  upon 
which  the  lady  and  child  became  passengers.  After  referring  to  the  case  we 
have  just  stated,  the  court  said:  "We  should  be  very  reluctant  to  hold  that  an 
aged  or  infirm  mother,  or  sister,  or  wife,  or  indeed  any  other  woman,  especially 
if  encumbered  with  an  infant  child,  should  not  be  allowed  the  assistance  of  a 
male  friend  or  relative  in  getting  a  seat  upon  a  railroad  car,  and  that  such  friend 
or  relative  was  to  be  treated  as  a  mere  stranger  to  the  company,  having  no  claim 
upon  the  company  for  an  injury  under  any  circumstances.  Not  being  a  passen- 
ger, it  is  conceded  that  no  extraordinary  care  was  required ;  but  whether  the 
neglect  of  customary  signals  would  not  amount  to  ordinary  negligence  is  a 
matter  upon  which  the  Massachusetts  decision  is  not  satisfactory."  ^  So,  in  a 
case  where  a  depot-platform  gave  way  on  account  of  a  great  crowd  which  had 
assembled  to  hear  the  President  of  the  United  States  speak,  and  many  persons 
weie  thereby  injured  and  some  killed,  the  court  said:  "Had  it  been  the  hour 
for  the  arrival  or  departure  of  a  train,  and  he  [the  plaintiff]  had  gone  there  to 
welcome  a  coming  or  speed  a  parting  guest,  it  might  very  well  be  contended 
that  he  was  there  by  authority  of  the  defendants,  as  much  as  if  he  was  actually 
a  passenger,  and  it  would  then  matter  not  how  unusual  might  have  been  the 
crowd,  the  defendants  would  have  been  responsible.  As  to  all  such  persons  to 
whom  they  stood  in  such  a  relation  as  required  care  on  their  part,  they  were 
bound  to  have  the  structure  strong  enough  to  bear  all  who  could  stand  on  it ;  as 
to  all  others,  they  were  liable  only  for  wanton  or  intentional  injury.  The  plaintiff 
was  on  the  spot  merely  to  enjoy  himself,  to  gi'atify  his  curiosity,  or  to  give  vent 
to  his  patriotic  feelings.    The  defendants  had  nothing  to  do  with  that."  * 

§  8.  Passenger  temporarily  absent  from  Conveyance,  etc.  —  As  we  have 
seen,  it  is  not  necessary  that  a  person  should  be  on  the  conveyance,  before 
the  relation  of  passenger  and  carrier  begins.  So,  too,  the  relation  may  exist 
at  a  time  when  the  person  who  has  been  a  passenger  on  the  conveyance  is 

1  Lucasv.  New  Bedford  etc.  K.  Co.,  6  Gray,  <  Gillis  v.  Pennsylvania  R.  Co.,  59  Pa.  St. 

67.  i  Ibid.  129,  U.3 ;  s.  c.  8  Am.  L.  Reg.  (N.  s.)  729.    See 

^  Doss  V.  Missouri  etc.  R.  Co., 59  Mo.  27,  35.        also  Keokuk  Packet  Co.  v.  Henry,  50  111.  264. 


PASSENGER    ABSENT    FROM    COiNVEYANCE.  51 


Evidence  —  Burden  of  Proof. 


temporarily  absent  from  it,'  —  as  where  a  passenger  is  walking  on  a  platform  of  a 
depot  provided  for  the  convenience  of  passengers  while  the  train  is  stopping  for 
refreshments.^  So,  too,  he  may  be  a  passenger  although  at  the  time  he  has  left 
one  conveyance  and  is  walking  to  get  on  auother.^  Thus,  a  lady  had  issued  to 
her  a  policy  of  insurance  against  accident,  which  insured  her  life  in  the  sum  of 
§5,000  in  the  event  of  her  death  from  personal  injury,  "when  caused  by  any 
accident  while  travelling  by  public  or  private  conveyance  provided  for  the  transpor- 
tation of  passengers."  In  the  course  of  a  journey  by  a  connecting  steamboat  and 
railway  line  she  fell  upon  a  slippery  sidewalk,  while  walking  from  the  steamboat- 
landing  to  the  railway-station  as  was  usual  for  travellers  on  that  route,  and 
thereby  received  injuries  which  caused  her  death.  It  was  held  (it  appearing 
that  she  was  so  walking  in  the  actual  prosecution  of  her  journey)  that  the  death 
was  covered  by  the  terms  of  the  policy,  and  that  she  was  to  be  regarded  as 
having  received  the  injury  while  travelling  by  public  conveyance.  It  was  further 
held  in  that  case  that  the  fact  that  there  were  hacks  by  which  the  deceased  might 
have  ridden  from  the  lauding  to  the  station  did  not  affect  the  question,  it  being 
the  general  custom  for  passengers  to  walk.*  But  if  the  person  has  left  the 
conveyance  with  no  intention  of  returning,  and  is  not  pursuing,  as  it  were,  a 
continuous  line  of  travel,  as  in  the  last  case  stated,  the  relation  of  passenger  and 
carrier  ceases  with  the  passenger's  departure  from  the  conveyance,  —  certainly 
when  he  has  left  the  wharf  or  depot  connecting  therewith,^  —  and  the  going  back 
to  the  conveyance  after  having  left  it,  for  some  purpose  of  his  own,  with  no 
intention  to  continue  his  journey,  would  not  revive  the  relation  of  passenger  and 
carrier  which  had  terminated  by  his  leaving  it.^ 

§  9.  Evidence  as  to -who  is  a  Passenger  —  Burden  of  Proof  —  Employee's 
Pass  —  Evidence  to  show  that  the  Train  is  a  Passenger  Train.  —  Every  one 
riding  in  a  railroad  car  or  other  conveyance  of  a  cari'ier  is  presumed  pnma  fade 
to  be  there  lawfully  as  a  passenger,  having  paid,  or  being  liable  when  called  on 
to  pay  his  fare,  and  the  onus  is  upon  the  carrier  to  pi'ove  affirmatively  that  he 
was  a  trespasser.'  But  it  would  be  error  to  exclude  the  introduction  in  evidence 
of  a  ticket  which  stated  upon  its  face  that  it  w^as  a  pass  to  the  plaintiff,  who  was 
suing  a  railroad  company  for  injuries  received  by  him  through  the  alleged  negli" 
gence  of  the  defendant's  agents,  and  described  him  as  "route-agent,  an  employee 
of  the  Pennsylvania  Railroad  Company,"  which  was  the  name  of  the  defendant. 
The  court,  in  such  a  case,  said:  "The  evidence  offered  was,  of  course,  to  show 
that  the  plaintiff  accepted  and  used  this  ticket.  It  certainly  was  an  admission  by 
him  that  he  bore  to  the  plaintiff  in  error  the  relation  of  employee  or  servant.  It 
was  not,  indeed,  conclusive,  not  an  estoppel,  if  explained  so  as  to  show  that  he 
was  really  not  in  the  employ  of  the  company,  but,  as  was  alleged,  received  and 

'  Keokuk  etc.  Packet  Co.  v.  True,  88  111.  way  Passengers'  Assur.  Co.,  26  Eng.  Law  & 

608;  Clussnian  v.  Long  Island  R.  Co.,  9  Hun,  Eq.  432. 
618  (s.  c.  afflrmed,  73  N.  Y.  606).  5  piatt  v.  Forty-second  Street  etc.  R.  Co., 

2  Jeffersonville  etc.  R.  Co.  v.  Riley,  39  Ind.  4  Thomp.  &  C.  406. 

568.  »  Pittsburgh  etc.  R.  Co.  v.  Krouse,  30  Ohio 

3  Ilulbert  V.  New  York  etc.  R.  Co.,  40  N.  Y.       St.  222. 

14.5.  ^  Pennsylvania  R.  Co.  v.  Books,  57  Pa.  St. 

•<  Northrup  v.  Railway  Passengers'  Assur.  339;  Creed  v.  Pennsylvania  R.  Co.,  8G  Pa.  St. 
Co.,  43  N.  Y.  516.    See  also  Theobold  v.  Rail-        139. 


02  WHEN  RELATION  OF  CARRIER  AND  PASSENGER  SUBSISTS. 


Notes. 


used  the  ticket  as  a  route-agent  in  the  service  of  the  post-ofBce  department  of  the 
government  of  the  United  States,  under  a  contract  between  that  department  and 
the  company  for  carrying  the  mails.  *  *  *  The  plaintiff  in  error  had  a  right 
to  have  the  whole  evidence  go  to  the  jury."  i  Where  railroad  companies  permit 
passengers  to  be  usually  carried  on  some  of  their  freight-trains,  if  persons  go 
aboard  one  of  their  trains  supposing  it  in  good  faith  to  be  one  of  those  on 
which  passengers  are  thus  carried,  and  are  not  informed  to  the  contrary  before 
receiving  injuries  to  their  persons,  caused  by  the  mismanagement  of  the  train, 
and  there  being  nothing  in  the  situation  or  condition  of  the  train  sho^ving  that 
passengers  are  not  carried  upon  it  as  well  as  upon  any  other  freight-trains,  such 
persons  will  have  the  rights  of  passengers  in  respect  to  such  injuries,  although 
they  were  not  in  the  habit  of  carrying  passengers  on  that  train ;  and  especially 
will  this  be  so  if  they  are  directed  to  go  aboard  by  the  conductor  of  the  train, 
although  such  conductor  has  in  fact  no  authority  from  the  compatiy  for  that 
purpose.  In  such  a  case,  the  jury  might  find  that  such  persons  were  aboard  such 
a  freight-train  as  passengers.  And  it  would  be  competent  for  such  persons,  in  a 
suit  for  damages  for  injuries  received  by  them  whUe  on  such  trains,  to  introduce 
in  evidence  conversations  held  by  them  at  the  time  with  the  person  who  directed 
them  to  the  train,  tending  to  show  that  he  was  an  employee  of  the  company.'^ 

§  10.  Persons  employed  on  a  Private  Car  —  Slaves  carried  for  Hire. — 
Wliile  a  person  in  charge  of  a  private  car,  or  employed  thereon,  which  is  attached 
to  a  railroad  train,  cannot  strictly  be  considered  a  passenger,  yet  he  certainly  is 
entitled  to  the  rights  of  a  passenger  so  far  as  an  injury  to  him  is  concerned. 
And  he  cannot  be  regarded  as  an  employee  of  the  railroad  company  so  as  to  pre- 
clude him  from  recovering  for  injuries  received  through  the  negligence  of  em- 
ployees of  the  company.^  It  was  early  held  in  the  United  States  Supreme  Court 
that  slaves  being  carried  for  hire  occupied  the  relation  of  passengers  to  the 
carrier.* 

1  Penn.  R.  Co.  v.  Books,  57  Pa.  St.  339.  «  Lockhart  v.  Lichtenthaler,  46  Pa.  St.  151 ; 

■■'  Lucas  V.  Milwaukee  etc.  R.  Co.,  33  Wis.  Lackawanna  etc.  R.  Co.  v.  Chenewith,  52  Pa. 

41.    See  also  Dunn  v.  Grand  Trunk  R.  Co.,  58  St.  382 ;  Cumberland  Valley  B.  Co.  v.  Myers, 

Me.  187;  Creed  v.  Penn.  B.  Co.,  86  Pa.  St.  139;  56  Pa.  St.  288. 
Houston  etc.  R.  Co.  v.  Moore,  49  Texas,  31.  *  Boyce  v.  Anderson,  2  Pet.  150. 


CHAPTER  III. 

OF  THE  OBLIGATION  OF  THE  CARRIER  TO  CARRY  AC- 
CORDING TO  ADVERTISEMENT  OR  CONTRACT. 


Leading  Cases:  1.  Denton  v.  Great  Northern  Bailway  Company.  —  Failure  of 
a  railway  company  to  transport  according  to  advertised 
time-tables. 

2.  Eawcroft  v.  Grreat  Northern  Bailway  Company.  —  Failure 

of  a  railway  company  to  transport  according  to  special 
contract. 

3.  Great    Western    Bailway   Company   v.  Pocock.  —  Railway 

ticket  for  one  part  of  route  not  good  for  another  part. 

Notes:     §  1.  "What  the  ticket  is. 

2.  Failure  to  transport  according  to  contract. 

3.  Duty  to  run  trains  on  schedule  time. 

4.  Special  contracts  for  carriage. 

6.  Right  to  stop  off  and  resume  journey  on  the  same  ticket. 
6.  Limited  tickets. 


1.   FAILURE    OF  A  RAILWAY  COMPANY  TO   TRANSPORT   ACCORDING 

to  advertised  time-tables. 
Denton  v.  Great  Northern  Eailway  Company.* 

English  Court  of  Queen's  Bench,  1856. 

The  Right  Hon.  John  Lord  Campbell,  Chief  Justice. 
Sir  John  Taylor  Coleridge,  Kt., 

"    William  Wightman,  Kt., 

"    William  Erle,  Kt., 

"    Charles  Crompton,  Kt., 


-  Justices. 


A  railway  company  which  advertises  to  transport  passengers  between  two  given  points 
within  certain  hours  of  each  day,  knowing  that  it  cannot  so  transport  passengers 
owing  to  the  discontinuance  of  a  train  on  a  connecting  line,  must  pay  to  a  person 
who  on  the  faith  of  such  advertisement  has  come  to  its  station  to  be  so  transported 
the  damages  he  has  sustained  by  reason  of  the  delay. 

At  the  hearing  of   a   plaint  before    the   judge  of  the  Bloomsbury 
County  Court  of  Middlesex,  the  judge  of  the  County  Court  suggested 


•  Reported,  5  El.  &  Bl.  860. 


(53) 


54      OBLIGATION  TO  CARRY  ACCORDING  TO  CONTRACT. 

Denton  ■».- Great  Northern  Railway  Company. 

to  the  parties  that,  as  the  question  was  of  general  importance  and  there 
was  no  power  of  appeal,  the  amount  claimed  in  the  plaint  being  under 
£20,  it  was  desirable  that  the  plaint  should  be  removed  by  certiorari 
into  one  of  the  superior  courts,  with  a  view  of  stating  a  case  for  the 
opinion  of  the  court  on  the  facts  then  found  by  him.  The  parties 
having  acceded  to  this  course,  the  plaint  was  removed  by  certiorari 
into  this  court ;  and  by  order  of  a  judge  a  case  was  stated,  of  which 
what  follows  is  an  abridgment. 

The  plaintiff  being  in  London  in  March,  1855,  and  having  business 
at  Peterborough  on  the  25th  of  March,  1855,  and  at  Hull  on  the 
26th  of  March,  1855,  consulted  the  pi'inted  time-tables  issued  in  the 
usual  way  by  the  defendants  for  that  month.  In  these  time-tables 
a  train  was  advertised  to  leave  London  at  5  p.  m.,  and  reach  Peter- 
borough about  7  p.  M.,  and  thence  to  proceed,  amongst  other  towns, 
to  Hull,  to  arrive  there  about  midnight.  At  the  bottom  of  the  time- 
tables was  the  following  notice:  "The  companies  make  every  exertion 
that  the  trains  shall  be  punctual,  but  their  arrival  and  departure  at 
the  time  stated  will  not  be  guaranteed,  nor  will  the  companies  hold 
themselves  responsible  for  delay,  or  any  consequences  arising  there- 
from." The  time-tal)les  advertising  this  train  were  till  after  the  26th 
of  March  exhibited  by  the  defendants  at  their  stations,  where  the 
plaintiff  had  seen  them,  and  were  printed  and  circulated,  and  on  the 
25th  of  March  the  plaintiff  had  one  in  his  possession. 

The  plaintiff,  having  made  his  arrangements  on  the  faith  of  these 
time-tables,  went  down  to  Peterborough  by  an  early  train  of  the 
defendants,  transacted  his  business  at  Peterborough,  and  went  to  the 
defendants'  station  at  Peterborough  in  due  time  to  take  a  ticket  to 
Hull  by  the  evening  train  so  advertised ;  but  there  was  no  such  train 
to  Hull,  nor  had  there  been  one  during  any  part  of  the  month  of 
March.  The  explanation  of  this  was  that  the  whole  line  of  railway 
from  Peterborough  to  Hull  was  not  the  property  of  the  defendants, 
tlieir  Hne  ending  at  Askerne  on  the  route  from  Peterborough  to  Hull. 
They  had  running  powers  over  the  line  of  the  Lancashire  and  Yorkshire 
Railway  Company  from  Askerne  to  Milford  Junction,  where  the  line  of 
the  North-Eastern  Railway  Company  joins  that  of  tlie  Lancashire  and 
Yorkshire  Railway  Company.  There  had  been  in  February  an  arrange- 
ment between  the  three  companies  by  which  passengers  booked  at  the 
sations  on  the  line  of  the  Great  Northern  Railway  Company  were 
carried  in  the  carriages  of  that  company  to  Milford  Junction,  and 
thence  were  conveyed  by  the  North-Eastern  Railway  Company  to  Hull 
by  a  train  departing  a  few  minutes  after  the  arrival  of  the  train  leaving 


FAILURE    TO    RUN    TRAINS    ON    SCHEDULE    TIME.  55 

English  Court  of  Queen's  Bench. 

Peterborough  about  7  p.  m.  Towards  the  end  of  February,  prior  to 
the  publication  by  the  defendants  of  their  time-tables,  but  after  they 
had  been  prepared  and  printed,  the  North-Eastern  Railway  Company 
gave  notice  to  the  defendants  that  after  the  first  day  of  March  the  train 
from  Milford  Junction  to  Hull  would  be  discontinued.  The  defendants 
nevertheless  made  no  alteration  in  their  time-tables,  which  were  pub- 
lished and  issued  for  March.  The  plaintiff  consulted  them  and  was 
misled  as  above  stated.  In  consequence  of  the  absence  of  this  train 
the  plaintiff  could  not  get  to  Hull  in  time  for  an  appointment  which  he 
had  made  for  the  morning  of  the  26th  of  March,  and  sustained  damage 
to  the  amount  of  £5  10s.  It  did  not  appear  in  or  by  the  time-tables 
whether  the  train  from  Peterborough  to  Hull  was  or  was  not  entirely 
under  the  control  of  the  defendants.  The  question  for  the  opinion  of 
the  court  was  whether  the  plaintiff  was  entitled  to  recover. 

Maynard,  for  the  plaintiff.  —  The  publication  of  the  time-tables 
amounted  to  a  contract  to  have  a  train  as  advertised  for  the  use  of 
those  who  would  come  to  use  it.  It  is  analogous  to  the  cases  in  which 
an  advertisement  offering  a  reward  for  a  service  has  been  held  to 
amount  to  a  contract  to  pay  it,  made  with  any  person  who  performed 
the  condition.^  Besides,  the  defendants  are  carriers,  who  have  pro- 
fessed to  carry  to  Hull.  The  obligation  of  a  carrier  is  to  carry 
"according  to  his  public  profession;"  per  Parke,  B.,  in  JoJinson  v. 
Midland  Railway  Company.^  [Crompton,  J.  —  Carriers  of  goods  have 
that  obligation,  but  are  there  any  cases  showing  that  there  is  the  same 
obligation  on  carriers  of  passengers?  There  may  be  a  distinction 
between  them.  I  do  not  say  that  there  is  one.]  The  point  whether 
there  was  such  a  distinction  was  mooted  in  Benett  v.  The  Peninsular 
Steamboat  Company ^'^  but  it  did  not  become  necessary  to  decide  it.  At 
all  events,  the  plaintiff  is  entitled  to  recover,  as  he  was  induced  to  act 
on  a  representation  made  by  the  authorized  servants  of  the  defendants 
w  bich  at  the  time  it  was  made  they  knew  to  be  false. 

Hugh  Hill,  contra.  —  First,  there  is  no  contract.  [Lord  Campbell, 
C.  J.  —  The  defendants  are  not  owners  of  the  whole  line  to  Hull;  but 
I  think  that  where  there  is  a  contract  for  carriage  from  one  terminus  to 
aiiotlier,  actually  made  with  a  railway  company,  it  has  been  held  imma- 
terial how  many  companies  intervened.]  It  was  first  so  decided  ^n 
Muschamp  v.  Lancaster  and  Preston  Junction  Raihvay  Company,'^  which 
has  often  been  acted  upon ;  so  that,   no  doubt,  if    the  plaintiff   had 


'  Williams  v.  Carwardine,  4  Barn.  &  Adol.  «  4  Exch.  367. 

621.    See  Gerhard  v.  Bates,  2  El.  &  Bl.  476.  ^  g  C.  B.  775.  *  8  Mee.  &  W.  421. 


56  OBLIGATION   TO    CARRY    ACCORDING    TO    CONTRACT. 

Denton  v.  Great  Northern  Kailway  Company. 

obtained  a  ticket  for  Hull,  the  defendants  would  have  been  answerable 
for  not  taking  him  there,  for  the  ticket  would  have  been  a  contract. 
But  the  question  here  is  whether  they  have  agreed  to  give  a  ticket  to 
any  one  who  may  come.  If  it  is  a  contract,  it  is  an  absolute  contract, 
and  whatever  happens  they  must  run  a  train  as  soon  as  practicable, 
even  though  there  was  a  convulsion  of  nature. ^  In  the  cases  as  tO' 
rewards,  the  advertisement  is  a  request  to  do  certain  work,  for  which  the 
advertiser  promises  to  pay ;  but  this  is  no  more  than  a  statement  that 
they  intend  to  run  a  train.  If  that  is  held  to  be  a  contract,  the  conse- 
quences may  be  alarming.  If  a  ship  is  once  advertised  as  being  about 
to  sail  as  a  general  ship,  the  owner  has,  according  to  this,  made  a  con- 
t;  act  with  every  one  who  chooses  to  come  to  offer  goods  or  freight,  that  he 
shall  not  change  its  destination.  A  mere  pubhcation  of  an  intention  is 
not  a  contract.  In  1  Rolle' s  Abridgment,  6,  tit.  '•'■  Action  sur  Case,"  M,  pi. 
1,  it  is  said :  "  Si  soit  communication  enter  le  pere  de  A.  et  B.  pur  un  mar- 
riage enter  le  dit  A.  et  lefile  de  B.,  et  B.  tunc  et  ibidem  affirme  et  publish 
al  pere  de  A.  quod  daret  ei  qui  maritaret  la  dit  file  per  son  assent  £100, 
et  puis  A.  marry  le  file  de  B.  per  son  assent,  uncore  cest  affirmance  et 
publicacion  de  B.  ne  raisera  auscun  promise,  sur  que  un  action  sur  as- 
sumpsit poet  estre  port;  pur  ces  que  les  dilz  parolls  ne  include  ascun 
promise."  Then,  as  to  the  supposed  false  representation.  It  appears 
by  the  case  that  when  the  tables  were  printed  they  were  accurate 
enough ;  there  was  no  legal  duty  on  them  to  print  new  time-tables. 
[Ckompton,  J.  —  It  is  not  the  original  printing  that  makes  against  your 
clients ;  but  they  continue  to  issue  them  as  representations  that  there 
was  such  a  train  after  they  knew  that  there  was  not.  It  was  a  natural 
consequence  of  such  a  representation  that  the  plaintiff  should  act  as  he 
did ;  and  he  was  by  the  representation  induced  to  act.  If  these  cir- 
cumstances concur,  there  is  a  remedy  by  action,  though  not  if  any  one 
of  them  is  wanting.^] 

Maynard  was  not  called  upon  to  reply. 

Lord  Campbell,  C.  J.  — This  is  a  case  of  some  importance,  both  as 
regards  the  public  and  the  railway  companies.  It  seems  to  me  that  the 
representations  made  by  railway  companies  in  their  time-tables  cannot 
be  treated  as  mere  waste  paper;  and  in  the  present  case  I  think  the 
pldntiff  is  entitled  to  recover,  on  the  ground  that  there  was  a  contract 
with  him,  and  also  on  the  ground  that  there  was  a  false  representation 
by  the  company. 


»  Anonymous,  1  Dyer,  33  a,  pi.  10;  "Walton  v.  Watcrhouse,  2  Sannd.  421  a,  note  2. 
•  Taylor  v.  Ashlon,  11  Mee.  &  W.  401. 


FAILUKE    TO    RUN    TRAINS    ON    SCHEDULE    TIME.  57 

English  Court  of  Queen's  Bench. 

It  seems  to  me  that  if  the  company  promised  to  give  tickets  for  a 
train  running  at  a  particular  hour  to  a  particular  place,  to  any  one  who 
would  come  to  the  station  and  tender  the  price  of  the  ticket,  it  is  a  good 
contract  with  any  one  who  so  comes.  I  take  it  to  be  clear  that  the 
issuing  of  the  time-tables  in  this  way  amounts  in  fact  to  such  a 
promise ;  any  one  who  reads  them  would  so  understand  them.  Then, 
is  it  a  good  contract  in  law?  The  consideration  is  one  which  is  a  preju- 
dice to  the  person  who  makes  his  arrangements  with  a  view  to  the  fulfil- 
ment of  the  contract,  and  comes  to  the  station  on  the  faith  of  it.  Is  it 
not,  then,  within  the  principle  of  those  cases  in  which  it  has  been  held 
that  an  action  lies  on  a  contract  to  pay  a  reward  ?  There  the  promise  is 
to  the  public  at  large,  exactly  as  it  is  here ;  it  is  in  effect  the  same  as 
if  made  to  each  individual  conditionally  ;  and,  on  an  individual  fulfilling 
the  condition,  it  is  an  absolute  contract  with  him,  and  he  may  sue. 
That  being  so,  there  is,  I  think,  a  contract;  and  there  is  no  excuse 
shown  for  breaking  it.  It  is  immaterial  that  the  defendants  are  not 
owners  of  the  line  the  whole  way  to  Hull.  It  is  admitted  to  have  been 
often  rightly  held  that  where  there  is  a  ticket  taken  out  to  go  to  a  sta- 
tion, the  contract  binds  the  company  issuing  the  ticket,  though  it  is  not 
specified  how  much  of  the  line  over  which  the  journey  is  to  be  belongs 
to  that  company.  Then  reliance  is  placed  on  the  class  of  cases  which 
decide  that  an  absolute  contract  must  be  fulfilled  whatever  happens, 
which,  it  is  said,  shows  that  there  cannot  be  a  contract  here.  But  from 
the  nature  of  the  contract  I  think  there  might  be  implied  exceptions. 
A  carrier  by  sea  excepts  the  perils  of  the  sea.  It  may  be,  from  the 
nature  of  this  contract,  that  the  perils  of  the  railroad  are  excepted,  I 
see  no  inconvenience  likely  to  arise  from  holding  this  a  contract.  It  is 
put,  as  an  example  of  inconvenience,  that  a  ship-owner  who  has  adver- 
tised that  his  ship  is  bound  for  Calcutta  as  a  general  ship,  and  that  he 
will  take  on  board  goods  brought  to  her,  would  be  liable  to  an  action  if, 
when  goods  are  brought  on  the  faith  of  the  advertisement,  he  said  he 
had  got  a  better  freight,  and  was  now  bound  for  Jamaica ;  but  I  see  no 
reason  why  he  should  not  be  liable.  It  seems  to  me,  therefore,  that 
this  is  a  contract,  and  that  the  plaintiff,  who  has  acted  on  it,  has  his 
remedy  on  that  ground.  But  on  the  other  ground  there  is  no  doubt. 
The  statement  in  the  time-tables  was  untrue,  and  was  made  so  as  to  be 
what  the  law  calls  a  fraudulent  representation.  It  was  not  the  original 
printing  that  was  blamable ;  but  after  notice  that  the  train  was  with- 
drawn the  defendants  continue,  down  to  the  25th  of  March,  to  issue 
these  tables.  Was  not  that  a  representation  that  there  was  such  a  train? 
And,  as  they  knew  it  had  been  discontinued  for  some  time,  was  it  not 


58      OBLIGATION  TO  CARRY  ACCORDING  TO  CONTRACT. 

Denton  v.  Great  Northern  Railway  Company. 

a  false  representation  ?  It  is  all  one  as  if  a  person  duly  authorized  by 
the  company  had,  knowing  it  was  not  true,  said  to  the  plaintiff,  "  There 
is  a  train  from  Milford  Junction  to  Hull  at  that  hour."  The  plaintiff 
believes  this,  acts  upon  it,  and  sustains  loss.  It  is  well  established  law 
that  where  a  person  makes  an  untrue  statement,  knowing  it  to  be  un- 
true, to  another,  who  is  induced  to  act  upon  it,  an  action  lies.  The 
facts  bring  the  case  within  that  rule. 

(Coleridge,  J.,  was  absent.) 

WiGHTMAN,  J.  —  It  seems  to  me  that  the  publication  of  these  time- 
tables amounted  to  a  promise  to  any  one  of  the  public  who  would  come 
to  the  station  and  pay  for  a  ticket  that  he  shall  have  one  by  the  train  at 
seven.  It  is  said  that  this  will  make  the  company  liable  though  there 
be  inevitable  accidents.  But  the  provision  at  the  foot  of  the  time-tables 
protects  the  company  in  cases  of  delay  by  accidents,  though  the  pro- 
viso does  not  apply  to  the  present  case,  where  the  train  is  altogether 
taken  off. 

But,  whether  there  be  a  contract  or  not,  the  defendants  are  liable  as 
having  induced  the  plaintiff,  by  a  continued  knowingly  false  represen- 
tation, to  believe  that  there  was  a  train  at  seven  to  Hull;  which  he, 
believing,  acted  upon  to  his  prejudice.  All  the  essentials  for  an  action 
for  a  false  representation  are  here.  The  representation  is  untrue  ;  it  ia 
known  by  the  persons  making  it  to  be  untrue ;  it  is  calculated  to  induce 
the  plaintiff  to  act;  and  he,  believing  it,  is  induced  to  act  accordingly. 

Crompton,  J.  — I  also  think  that  the  plaintiff  is  entitled  to  judgment. 
I  entirely  agree  in  what  has  been  said  by  my  lord  and  my  brother 
WiGHTMAN,  that  an  action  in  the  nature  of  an  action  for  deceit  lies 
here.  The  company  make  a  fresh  statement  at  every  moment  whilst 
they  continue  to  hold  out  these  time-tables  as  theirs.  I  am,  besides, 
much  inclined  to  think  that  they  are  liable  also  on  the  ground  that  they 
have  committed  a  breach  of  their  duty  as  public  carriers.  A  public 
carrier  of  goods  must  carry  according  to  his  public  profession.  I 
think,  however,  that  there  has  been  no  decision  that  carriers  of  passen- 
gers are  under  the  same  obligation ;  though  in  Story  on  Bailments  ^  it  is 
said  they  are.  I  cannot  doubt  that  the  defendants  publicly  professed 
to  be  cai-riers  of  passengers  by  this  train  ;  and  therefore  I  am  inclined 
to  think  an  action  would  lie  on  that  ground.  But  I  am  not  prepared  to 
say  that  there  is  a  contract.  As  I  agree  that  the  defendants  are  liable, 
there  is  no  occasion  to  decide  this ;  and  it  is  true  that  the  cases  as  to 
the  recovery  of  rewards  have  an  analogy  to  this  case.     But  there  is  a 


1  S59L 


FAILURE  TO  TRANSPORT  ACCORDING  TO  SPECIAL  CONTRACT.    59 

English  Court  of  Queen's  Bench. 

<lifference  :  where  a  reward  is  offered,  it  is  generally  offered  to  procure  n 
service  which  is  entirely  performed  by  the  party  claiming  the  reward.  I 
never  was  able  to  see  any  good  reason  why  in  such  cases  he  might  not 
sue  for  work  and  labor  done  at  the  request  of  the  defendant.  But  in 
the  present  case,  or  in  that  which  might  be  put  of  a  shopkeeper  adver- 
tising that  he  had  cheap  goods  in  his  shop,  I  doubt  if  the  labor  of 
coming  to  the  station,  or  of  crossing  the  threshold  of  the  shop,  reall}' 
is  part  of  the  consideration  at  all.  If  it  be,  it  is  a  very  small  one.  I 
agree,  however,  that  any  consideration,  however  small,  will  support  a 
promise ;  and  perhaps  the  difference  between  me  and  my  lord  and  mj' 
brother  Wightman  is  rather  as  to  the  fact  than  the  law.  I  doubt 
whether  the  promise  here,  in  fact,  was  in  consideration  of  coming  to  the 
station.  If  it  was,  I  see  difficult}'  in  saying  that  the  shopkeeper  does 
not  promise  to  have  his  wares  for  those  who  will  take  the  trouble  to 
leave  the  street  and  come  into  his  shop.  But  it  is  quite  unnecessary, 
for  the  decision  of  this  case,  to  come  to  a  determination  on  that.  I  am 
clearly  of  opinion  that  the  action  lies  as  for  false  representation.  I 
think,  though  less  decidedly,  that  it  lies  on  the  ground  of  their  duty  as 
public  carriers  of  passengers  to  act  up  to  their  public  professions.  But 
I  doubt  whether  they  are  answerable  on  a  contract  to  do  all  that  may  be 
found  in  the  time-tables,  if  there  be  any  thing  there  beyond  what  would 
be  implied  as  part  of  their  duty  as  carriers. 

Judgment  for  plaintiff. 


2.   FAILURE    OF  A   RAILWAY   COMPANY  TO   TRANSPORT  ACCORDING 
TO   SPECIAL  CONTRACT. 

Hawcroft  V.  Great  Northern  Railway  Company.* 
English  Court  of  Queen's  Bench^  1852. 

The  Right  Hon.  John  Lord  Campbell,  Chief  Justice. 
Sir  John  Patteson,  Kt., 

*'    John  Taylor  Coleridge,  Kt., 

"    William  Wightman,  Kt., 

"    William  Erle,  Kt., 


Justices, 


Railway  Company  —  Excursion  Ticket  —  Special  Contract.— Excursion  tickets  were 
issued  by  the  G.  N.  R.  Co.,  at  B.,  to  convey  passengers  to  L.  and  back,  by  any  train 

•  Reported,  21  L.  J.  (Q.  H.)  178;  16  Jur.  196;  8  Eng.  Law.  &  Eq.  362.    This  case  was  heard 
before  Patteson  and  Wightman,  JJ. 


60      OBLIGATION  TO  CARRY  ACCORDING  TO  CONTRACT. 

Hawcroft  v.  Great  Northern  Railway  Company. 

advertised  for  that  purpose,  ■within  the  following  fourteen  days.  B.  was  not  on  the 
line  of  the  G.  N.  R.  Co.,  but  on  that  of  the  S.  Y.  R.  Co.,  which  joined  the  other  line  at 
D.  Two  trains  a  day  (morning  and  evening)  were  then  advertised  for  the  conveyance 
back  from  L.  in  pursuance  of  the  notice  on  the  ticket ;  but  B.  was  not  mentioned  in  the 
advertisement  as  one  of  the  stations  at  which  either  one  of  those  trains  would  stop, 
although  D.  was  so  mentioned.  H.,  who  had  taken  one  of  the  tickets  at  B.  and  had 
been  conveyed  to  L.,  returned  within  the  fourteen  days  by  one  of  the  evening  trains, 
and  on  arriving  at  D.  the  next  morning  found  that  there  was  no  train  for  B.  on  that 
day.  He  posted  to  B.,  and  sued  the  company  for  the  expense  of  so  doing.  Meld,  that 
he  was  entitled  to  recover.  Semhle,  a  railway  company  are  not  excused  from  carry- 
ing passengers  according  to  their  contract  upon  the  ground  that  there  is  no  room  for 
them  in  the  train ;  but  in  order  to  avail  themselves  of  this  answer,  they  should  make 
their  contract  conditional  upon  there  being  room. 

Appeal  from  the  County  Court  of  Yorkshire,  holden  at  Barnsley. 
The  action  was  brought  to  recover  damages  for  the  alleged  neglect  and 
refusal  of  the  defendants  to  convey  the  plaintiff  from  London  to 
Barnsley.  It  appeared  from  the  case  that  the  following  facts  were 
proved  or  admitted  on  the  trial :  During  the  period  of  the  great  exhibi- 
tion in  Hyde  Park,  the  defendants  were  in  the  habit  of  issuing  tickets 
for  the  conveyance  of  passengers  by  the  Great  Northern  Railway,  from 
various  places  on  the  line  of  such  railway  to  London  and  back,  at  a  low 
price,  by  certain  tickets  called  "  excursion  tickets."  On  the  2d  of 
August,  1851,  the  plaintiff,  who  is  a  confectioner  residing  at  Barnsley 
in  Yorkshire,  purchased  one  of  these  tickets  at  the  Barnsley  station, 
for  which  he  paid  5s. ,  and  which  was  in  the  following  form :  — 

"GREAT    EXHIBITION. 
"Barnsley  to  King's  Cross  and  back. 
''Third  Class." 
And  upon  the  back  of  such  ticket  was  the  following  notice :  — 

* 'Excursion  Ticket. 

"  To  return  by  the  trains  advertised  for  that  purpose,  on  any  day  not 
beyond  fourteen  days  after  date  hereof." 

The  defendants  advertised  certain  trains  called  "Exhibition  trains  " 
as  those  which  would  leave  the  King's  Cross  station  during  the  month 
of  August  for  the  conveyance  from  London  of  persons  holding  excur- 
sion tickets.  The  hours  at  which  the  trains  would  arrive  at  various 
places  on  the  Une  of  railway  were  mentioned  in  the  advertisements. 
Barnsley  was  not  among  such  places ;  but  the  times  when  they  would 
arrive  at  Doncaster  were  mentioned,  and  a  passenger  travelling  by  the 
defendants'  railway  from  London  to  Barnsley  would  proceed  to  Don- 


FAILURE  TO  TRANSPORT  ACCORDING  TO  SPECIAL  CONTRACT.         61 

English  Court  of  Queen's  Bench. 

caster,  and  be  conveyed  from  thence   to  Barnsley  by  a  train  of   the 
South  Yorkshire  Railway  Company,  the  Barnsley  station  being  situate 
on  the  South  Yorkshire  Railway  and  not  upon  the  line  of  the  Great 
Northern,  the  South  Yorkshire  joining  the  Great  Northern  at  Doncaster  ; 
hut  it  was  agreed  and  admitted  on  the  trial,  that  for  the  purposes  of 
this  action  the  ticket  should  be  deemed  and  taken  to  have  been  issued 
by  the  authority  and  as  the  ticket  of  the  defendants.     The  plaintiff,  on 
Saturday,  the   9th   of   August,  still    being    the    holder  of   the   ticket, 
presented  himself  at  the  King's  Cross  station  at  London,  shortly  before 
6  o'clock,  in   time  for  the  train  at  6:45  a.  m.,  for   the   purpose  of 
returning  to  Barnsley  by  the  train  which  was  advertised  to  start  at  that 
hour,  and  which  train  was  admitted  to  be  one  of  the  trains  referred  to 
in  the  ticket.     This  train  left  the  King's  Cross  station  for  the  places 
mentioned  in    the   advertisements ;  but   in    consequence  of    the  great 
pressure  of  persons  wishing  to  be  passengers  by  it,  the  plaintiff  was 
unable,  although  he  used  every  effort  to  do  so,  to  obtain  a  seat.     The 
plaintiff  then  applied  to  and  requested   the   station-master,   who  was 
admitted  to  be  the  servant  and  agent  of  the  defendants,  to  forward  him 
to  Barnsley  by  a  train  which  was  leaving  shortly  after ;  but  he  refused 
to  do  so,  and  told  the  plaintiff  that  he  must  wait  for  another  train. 
The  plaintiff  proceeded  on  the  same  day  by  the  advertised  excursion 
train  which  left  the  King's  Cross  station  at  9:15  p.  m.,   having  been 
kept  waiting  there  from  before  6  a.  m.     This  train  proceeded  to  Don- 
caster,  where  it  arrived  on  Sunday  morning.     No  trains  were  run  upon 
Sunday  by  the  South  Yorkshire  Company,  and  the  plaintiff  therefore 
hired  a  carriage  to  convey  him  to  Barnsley.     The  learned  judge  decided 
that  there  was  a  special  contract  between  the  plaintiff  and  the  defend- 
ants, and  he  ruled  that  the  latter  were  bound  to  carry  back  the  plaintiff 
from  London  to  Barnsley  by  the  train  advertised  to  leave  London  at 
6:  45  A.  M.,  or  by  some  other  train  within  a  reasonable  time  after  that 
liour,  and  that  it  was  not  a  sufficient  compliance  with  their  contract  to 
bring  him  from  London  by  the  train  at  9:15  p.  m.  ;  and  further,  that 
even  assuming  the  not  enabling  him  to  leave  London  until  9:15  p.  m. 
was  not  a  breach  of  contract,   yet  they  were  guilty  of   a  breach   in 
conveying  him  only  as  far  as  Doncaster  and  not  to  Barnsley,  and  that 
the  defendants  were  liable  for  not  performing   their   contract.     The 
defendants  had  therefore  brought  the  present  appeal. 

Phipson  (^Wordsworth  with  him),  for  the  appellants.  —  This  is  a 
question  of  construction,  and  turns  wholly  upon  the  form  of  the  excur- 
sion ticket.     It  is  admitted  that  the  ruling  of  the  judge  of  the  County 


62  OBLIGATION    TO    CARRY    ACCORDING    TO    CONTRACT. 

Hawcroft  v.  Great  Northern  Railway  Company. 

Court  would  be  correct  if  the  ticket  is  to  be  read  as  an  absolute  contract 
to  carry  passengers  by  any  train,  on  any  day,  without  any  limitation. 

[Wight:man,  J.  — The  words  "  on  any  day  "  mean  on  any  of  the  days 
for  which  trains  are  advertised,  that  the  plaintiff  pleases.] 

Assuming  that  the  plaintiff  has  the  option  of  choosing  his  days,  has 
he  the  option  of  choosing  any  train  on  that  day? 

[WiGHTMAN,  J. — But  you  limit  him  to  go  by  the  trains  advertised 
for  that  purpose.] 

Two  excursion  trains  went  each  day.  The  company  might  take  him 
by  either.  They  were  bound  to  caiTj'  him  back  only  by  the  trains 
advertised ;  there  was  no  train  advertised  for  Barnsley  at  the  hour  on 
which  the  plaintiff  started. 

[WiGHTMAN,  J.  —  This  was  a  train  advertised  for  the  purpose  of  con- 
veying back  excursion-ticket  holders.  They  know  nothing  of  adver- 
tisements relating  to  trains  on  the  South  Yorkshire  line.  The  respondent 
may  have  learned  the  hours  from  another  advertisement  than  that  which 
contained  the  names  of  the  places.  He  had  no  right  to  return  by  other 
trains  than  those  which  were  advertised,  but  he  was  not  bound  to  see 
how  far  they  went.  He  would  conclude  that  the  appellants  had  taken 
care  to  make  all  necessary  arrangements  with  the  South  Yorkshire  Rail- 
way Company.] 

Barnsley  was  not  mentioned  in  any  of  the  advertisements.  Could 
the  company  be  sued  if  they  had  refused  to  carry  a  passenger  when 
there  was  no  room  for  him  ?  They  were  common  carriers,  and  bound 
to  carry  safely. 

[Patteson,  J.  — They  should  have  made  it  a  condition  of  their  con- 
tract that  they  would  not  carry  unless  there  was  room.] 

Hardy  (with  him  Hall),  for  the  respondent,  was  not  called  upon. 

Patteson,  J.  —  The  question  turns  upon  the  meaning  of  the  contract 
contained  in  the  ticket.  The  language  used  is,  "  to  return  by  the  trains 
advertised  for  that  purpose ;"  that  means  to  return  back  to  Barnsley, 
where  the  ticket  was  taken.  The  advertisement  says  nothing  as  to  the 
time  of  arrival  at  Barnsley,  and,  being  silent,  the  plaintiff  might  well 
suppose  that  he  would  be  taken  there  in  a  reasonable  time  after  his 
arrival  at  Doncaster.  If  any  other  arrangement  was  entered  into,  and 
it  was  shown  to  have  been  brought  to  the  knowledge  of  the  respondent, 
the  result  might  be  different.  An  option  is  given  to  the  party  who  is 
to  return,  whether  he  will  go  by  the  morning  or  evening  train.  But  as 
the  company  could  not  take  him  by  the  morning  train,  they  should  have 
made  some  arrangement  to  carry  him  on  to  Barnsley  by  the  evening  one. , 


USE    OF    TICKET    ON    DIFEEKENT    PAKT    OF    ROUTE.  63 

English  High  Court,  Exchequer  Division. 

WiGHTMAN,  J.  —  The  whole  question  is,  What  was  the  contrac  i 
between  the  parties?  The  party  taking  the  ticket  had  no  right  to  return 
except  by  the  trains  advertised  for  that  purpose,  but  he  had  a  right  to 
insist  upon  going  by  one  of  those ;  and  it  may  be  that  by  going  by 
one  of  them  he  waived  any  right  to  object  that  he  had  not  been  carried 
by  a  former  one.  He  certainly  ought  to  have  been  taken  back  to 
Barnsley,  unless  he  was  a  party  to  some  special  arrangement  to  the 
contrary. 

Judgment  affirmed,  with  costs. 


3.  RAILWAY  TICKET  FOE  ONE  PART  OF  ROUTE  NOT  GOOD  FOR 

another  part. 

Great  Western  Railway  Company  v.  Pocock.* 

English  High  Court,  Exchequer  Division,  November,  1879. 

The  Right  Hon,  Sir  Fitzroy  Kelly,  Lord  Chief  Baron,  President. 
Sir  Anthony  Cleasby,  Kt., 

"    Charles  Edward  Pollock,  Kt., 

"    John  Walter  Huddleston,  Kt., 

"    Henry  Hawkins,  Kt., 


Barons. 


A  passengrer  purchased  a  ticket  from  W.  to  D.  and  return,  and  on  his  return  journey  from 
D.  to  W.  went  on  to  P.,  a  station  beyond,  and  refused  to  pay  fare  from  W.  to  P.  on  tlie 
ground  that  a  return  ticket  from  P.  to  U.  was  the  same  price  as  a  return  ticket  from  W. 
to  D.  Held,  that  as  soon  as  the  passenger  arrived  on  his  return  journey  at  W.  the 
contract  between  him  and  the  company  was  at  an  end,  and  he  must  pay  the  fare. 

This  was  an  appeal  from  the  decision  of  the  County  Court  judge  of 
Marylebone  in  favor  of  the  respondent. 

The  action  was  brought  to  recover  3d.,  the  second-class  fare  from 
"Westbourne  Park  to  Paddington.  The  respondent  took  a  second- 
class  return  ticket  from  Westbourne  Park  to  West  Drayton,  for  which 
he  paid  2s.  6c?.  On  his  return  journey  he  travelled  to  Westbourne 
Park  and  thence  to  Paddington,  but  refused  to  pay  3d.,  the  fare 
from  Westbourne  Park  to  Paddington,  which  was  demanded  by  the 
railway  company,  on  the  ground  that  the  return  fare  from  Padding- 
ton to  West  Drayton  was  the   same   as   the  return  fare  from  West- 

*  Beported,  28  Week.  Rep.  49;  10  Cent.  L.  J.  81. 


64      OBLIGATION  TO  CARRY  ACCORDING  TO  CONTRACT. 

Great  Western  Railway  Company  v.  Pocock. 

bourne  Park  to  "West  Drayton,  which  he  had  already  paid.  The  com- 
pany thereupon  sued  the  respondent  in  the  County  Court  for  3d.,  the 
fare  demanded.  The  railway  company  now  appealed  against  the  de- 
cision of  the  County  Court  judge  in  favor  of  the  respondent. 

Macmorran  and  Prankerd,  for  the  respondent,  showed  cause.  — The 
ticket  is  evidence  of  a  contract  merely,  and  not  of  the  terms  of  the 
contract  entered  into  between  the  parties.  It  is  evidence  that  the  pas- 
senger has  paid  his  fare,  and  is  only  given  to  the  passenger  for  the 
purpose  of  showing  what  he  has  paid.  [Hawkins,  J. — You  say  that 
it  is  treated  only  as  a  receipt  for  2s.  6d.  I  will  tell  you  what  the 
effect  of  that  would  be.  A  person  might  take  a  ticket  from  West- 
bourne  Park  to  West  Drayton,  —  he  would  take  that  as  a  receipt  for  the 
money,  —  and  he  would  then  go  to  Bath  and  use  that  ticket  from  Bath 
to  Bristol  and  back,  and  when  asked  for  2s.  6d.,  the  fare,  he  would  say, 
"Here  is  my  receipt,"  and  would  produce  his  return  ticket  from  West- 
bourne  Park  to  West  Drayton.] 

Wright  (ij.  B.  Webster^  Q.  C,  with  him),  in  support  of  the  rule,  was 
not  called  on. 

HuDDLESTON,  B.  — In  spite  of  the  ingenious  argument  of  Mr.  Macmor- 
ran, and  giving  him  credit  for  the  topics  which  he  has  adduced,  I  think 
that  this  appeal  must  be  allowed,  and  that  the  judgment  must  be  for  the 
appellants.  This  really  is  a  question  of  contract ;  the  ticket  undoubt- 
edly contains  the  contract  between  the  parties ;  and  that  contract  is 
that,  in  consideration  of  the  payment  made  by  the  respondent,  the  appel- 
lants agree  to  carry  him  from  Westbourne  Park  to  West  Drayton,  and, 
on  the  same  day,  to  bring  him  back  from  West  Drayton  to  Westbourne 
Park.  When  he  got  "back  to  Westbourne  Park  the  conti-act  was  at  an 
end.  It  is  entirely  a  question  of  contract ;  the  evidence  of  the  contract 
is  the  ticket,  and  when  the  terms  of  the  ticket  are  complied  with  the 
contract  expires,  —  in  this  case,  when  the  respondent  arrived  back  at 
Westbourne  Park ;  and  he  was  not  entitled  to  travel  the  other  distance 
except  on  pa^'ment  of  the  fare  charged  by  the  company. 

Hawkins,  J.  —  I  cannot  bring  m}'  mind  to  entertain  a  shadow  of 
doubt  on  the  question  now  before  us.  In  my  judgment,  it  is  a  pure 
question  of  contract,  which  may  be  put  in  popular  language  thus :  The 
company  say  that  in  consideration  of  2s.  Qd.  we  agree  to  carry  you 
from  Westbourne  Park  to  West  Drayton  and  back ;  the  moment  the 
passenger  has  arrived  back  at  Westbourne  Park  station  the  contract  is 
fulfilled.  If  he  desires  to  be  carried  beyond  Westbourne  Park  to  Pad- 
dington,  he  must  enter  into  a  new  contract.     The  passenger  in  this 


RAILWAY    TICKETS.  65 


Failure  to  transport  according  to  Contract. 


case  does  not  enter  into  a  new  contract,  and  he  refuses  to  do  so.     The 

company  then  do  what  they  have  a  right  to  do,  demand  3d.,  which  is 

the  fare,  and  he  declines  to  pay  it.     I  cannot  see  that  there  can  be 

any  question  on  the  subject. 

•  Bule  absolute. 


NOTES. 

§  1 .  "WTiat  the  Ticket  is.  —  The  possession  of  a  railroad  ticket  is  not  conclusive 
evidence  of  the  right  of  the  holder  to  transportation.  The  circumstances  may 
be  such  that  it  will  be  a  proper  subject  for  investigation  whether  the  holder  of 
the  ticket  has  not  got  possession  of  it  by  fraud,  or  whether  it  has  not  been  pre- 
viously used.^  The  possession,  however,  is  primd,  facie  evidence  that  the  holder 
has  paid  the  regular  price  for  it,  and  of  his  right  to  be  transported  at  some  time 
between  the  places  specified  thereon  on  some  passenger- train.  If  it  is  unmu- 
tilated,  the  presumption  is  that  it  has  never  been  used  for  that  purpose." 

A  ticket  cannot  be  said  to  be  either  the  contract  or  to  contain  the  contract. 
The  settled  opinion  is  that  it  is  a  mere  receipt,  token,  or  voucher,  adopted  for 
convenience,  to  show  that  the  passenger  has  paid  his  fare  from  one  place  to 
another.^  A  contract  for  transportation  may,  therefore,  be  proved  indepen- 
dently of  the  terms  of  the  ticket.* 

§  2.  Failure  to  transport  according  to  Contract.  —  The  failure  or  refusal  of 
the  carrier  to  receive  and  transport  the  passenger  confers  upon  the  latter  a  right 
of  action  for  consequential  damages.^  In  general,  such  an  action  is  for  the 
breach  of  the  contract  of  transportation,^  but  the  action  may  be  in  tort,  for  the 
violation  of  a  public  duty  to  carry  those  who  present  themselves  for  passage.' 
Thus,  the  respondent's  vessel  having  failed  to  come  to  take  passengers  who  had 
procured  tickets  and  were  ready  to  embark,  the  carrier  was  held  responsible  for 
the  consequential  delay  and  damage.  Said  Nelson,  J. :  "The  winds  and  waves 
or  weather  are  no  excuse  for  the  non-fulfilment  of  a  contract  as  to  the  time  of 
the  commencement  of  the  voyage.    If  these  circumstances  had  been  intended 

'  Davis  V.  Great  Western  R.  Co.,  20  Upper  ^  Bennett  v.  Dutton,  ante,  p.  2;  Howard 

Canada  Q.  B.  27.  v.  Cobb,  19  Law  Reporter,  377;  Hawcroft  v 

-  Fieri;.  Finch,  24  Barb.  514.  Great  Northern  R.Co.,8  Kng.  Law  &  Eq.  362 

8  Quiinby  v.  Vanderbilt,  17  N.  Y.  306;  Raw-  s.  c.  16  Jur.  196;  21  L.  J.  (Q.  B.)  178;  ante,  p 

son  V.  Pennsylvania  R.  Co.,  48  N.  Y.  212;  59;  Indianapolis  etc.  R.  Co.  w.  Birney,  71  111 

Johnson  v.  Concord  R.  Co.,  46  N.  H.  213 ;  Gor-  391. 

don  W.Manchester  etc.  R.  Co.,  52  N.  H.  596;  «  "The  action  is  in  reality  upon  a  contract 

The  State  v.  Overton,  24  N.  .1.  L.  435,  438;  it  is  commonly  said  to  be  founded  upon  a 

Boicev.  Hudson  Riv.R.  Co. ,61  Barb.  611 ;  Bar-  duty,  but  it  is  a  duty  arising  out  of  a  con 

ker  V.  Coflin,  31  Barb.  556;  Elmore  v.  Sands,  tract."    Per  Blackburn,  J.,  in  Hobbs  v.  Lon 

54  N.  Y.  512,  515;   Henderson  v.  Stevenson,  don  etc.  R.  Co.,  L.  R.  10  Q.  B.  Ill,  119. 

L.  R.  2  Sc.  App.  470,  per  Lord  Halherley.  '  Bennett  v.  Dutton,  supra;  Heirn  v.  Mc 

*  Van  Buskirk  v.   Roberts,  31  N.  Y.  661;  Caughan,  32  Miss.  17;  New  Orleans  etc.  R 

Quimby  v.  Vanderbilt,  supra.  Co.  v.  Hurst,  36  Miss.  660. 


G6  OBLIGATION    TO    CARRY    ACCORDING    TO    CONTRACT. 


Notes. 


as  elements  of  it,  the}'  should  have  been  expressly  provided  for  by  the  owner, 
and  then  all  parties  would  have  understood  it."  i  A  common  c:i.rier  engaged  in 
carrying  the  United  States  mail,  and  also  in  the  transportation  of  passengers, 
wrote  a  letter  to  a  postmaster  at  one  of  the  offices  from  which  he  was  accustomed 
to  carry  the  mail,  informing  him  that  on  a  certain  day  one  of  his  vessels  (whicl: 
did  not  ordinarily  stop  and  receive  a  mail  or  passengers  at  that  place)  would 
stop  there ;  and  also  requesting  the  postmaster  to  have  a  mail  in  readiness,  and 
to  "advise  all  who  may  feel  interested  in  the  above."  It  was  held  that  the 
expression  above  quoted  did  not  refer  simply  to  persons  interested  in  the  arrival 
and  departure  of  the  mail,  but,  under  the  circumstances,  included  those  who 
wished  to  take  passage  on  the  vessel;  and  further,  that  it  was  competent  to 
introduce  parol  evidence  of  the  circumstances  under  which  the  letter  was 
written,  and  of  the  nature  of  the  business  in  which  the  defendant  was  engaged, 
in  order  to  show  that  passengers  were  meant  to  be  included  in  those  having 
an  interest  in  the  arrival  and  departure  of  the  boat.  Therefore  the  plaintiff  and 
his  wife,  who  relied  upon  the  public  notice  given  in  consequence  of  the  letter  to 
the  postmaster,  and  went  upon  the  pier  late  at  night  when  the  vessel  was 
expected  to  arrive  and  remained  there  until  morning,  and  got  no  passage  in 
consequence  of  the  failure  of  the  vessel  to  appear,  were  held  to  have  a  cause 
of  action  for  breach  of  the  duty  which  the  carrier  as  such  owed  to  the  public." 

Carrying  a  passenger  beyond  his  destination  in  disregard  of  his  request  upon 
reaching  this  place  to  be  there  put  off,  will  afford  a  good  ground  for  an  action.* 
And  this  is  so  although  no  bodily  injury,  mental  suffering,  insult,  oppression,  or 
pecuniary  loss  be  shown ;  and  though  these  elements  of  damage  are  disclaimed, 
the  passenger  acquires  a  teclmical  right  to  the  recovery  of  nominal  damages.* 
In  order  to  afford  an  opportunity  to  passengers  to  leave  the  train  at  the  place  of 
destination,  the  company  is  bound  to  have  announced  the  names  of  the  different 
stations  upon  the  arrival  of  the  train,  and  then  stop  a  sufficient  length  of  time  to 
allow  passengers  to  get  off  without  danger  or  injury  to  their  persons.^ 

It  is  the  duty  of  the  passenger  to  ascertain  what  train  will  stop  at  his  destina- 
tion. Therefore  a  passenger  who  purchased  a  ticket  to  a  station  at  which  local 
trains  stopped  but  through  ti'ains  did  not  was  not  entitled  to  enter  the  first  train 
due  after  he  purchased  the  ticket  and  demand  of  the  conductor  that  it  stop  at 
his  station,  when  by  the  regulations  of  the  company  it  was  not  permitted  to  do 
so,  as  it  was  a  through  train.^    A  passenger  was  directed  by  an  ageut  of  the  carrier 

1  Howard  v.  Cobb,  19  Law  Reporter,  377.  660;  Porter  v.  The  New  England,  17  Mo.  290; 
See  also  Williams  v.  Vandeibilt,  28  N.  Y.  217  Pittsburgh  etc.  R.  Co.  v.  Nuzum.SO  lud.  141 : 
(affirming  s.  c.  29  Barb.  191) ;  Van  Buskirk  v.  Mobile  etc.  R.  Co.  v.  McArthur,  4:5  Miss.  ISO: 
Roberts,  31  N.  Y.  661;  West  v.  Str.  Uncle  Memphis  etc.  R.  Co.  v.  Whitfield,  44  Miss. 
Sam,  1  McAll.  505;  Ward  v.  Vanderbill,  4  466;  Sunday  «.  Gordon,  1  Blatchf.  &  H.  Adm. 
Abb.  App.  Dec.  521.  569. 

2  Heirn  v.  McCaughan,  32  Miss.  17.  See  <  Thompson  t>.  New  Orleans  etc.  R.  Co.,  50 
also  Denton  v.  Great  Northern  R.  Co.,  ante.  Miss.  315.  See  also  New  Orleans  etc.  R.  Co. 
p.  53.    If  the  officer  of  a  boat  expressly  con-  v.  Statham,  42  Miss.  607. 

tracts  to  land  a  passenger  at  a  particular  °  Southern   R.  Co.  v.  Kendrick,  40  Miss, 

point,  with  a  knowledge  of  the  danger  of  375;  Pennsylvania  R.  Co.  v.  Kilgore,  32  Pa. 

landing  there,  such   danger  will  afford  no  St.  294;  New  Orleans  etc.  R.  Co.  i'.  Statham, 

excuse  for  a  failure  to  comply  with  the  con-  supra. 

tract.  Porter  v.  The  New  England,  17  Mo.  290.  «  Pittsburgh  etc.  R.  Co.  v.  Nuzuni,  50  Ind. 

3  New  Orleans  etc.  R.  Co.  v.  Hurst,  36  Miss.  141.    See  also  Ohio  etc.  R.  Co.  v.  Applewhite, 


CARRYING    PASSENGER   BEYONl>    HIS    DESTINATION.  67 


Kunnmg  Trains  on  Schedule  Time. 

to  a  train  then  standing  in  his  sight,  as  one  which  would  convey  him  to  L.,  his 
destination.  That  train,  after  running  one  hundred  and  fifty  miles,  deflected  at 
S.  to  a  branch  road  not  passing  through  L.,  but  was  followed  an  hour  afterwards 
by  another  train,  starting  from  the  same  place,  which  passed  through  S.  and  thence 
on  to  L.  The  passenger  should  have  got  off  at  S.  and  waited  for  this  last  train. 
It  was  held  that  the  passenger  was  in  fault  for  being  miscarried  if  at  or  before 
reaching  the  point  of  divergence  the  carrier  used  such  means  as  would  have  con- 
veyed to  a  person  of  ordinary  intelligence,  using  reasonable  care  and  attention, 
information  of  the  necessity  of  his  transferring  himself  to  the  second  train. i  If 
the  passenger,  in  such  a  case,  discovered  the  mistake  so  that  he  might  have  re- 
turned to  the  junction  without  charge  by  another  train,  in  season  to  have  taken 
the  train  going  to  his  destination,  he  ought  to  have  done  so.  His  refusal  to 
leave  the  cars  or  pay  his  fare  on  the  route  he  was  then  travelling  justified  his 
expulsion  from  the  train.^ 

It  is  undoubtedly  the  duty  of  the  carrier  to  provide  passengers  with  seats,^  and 
they  cannot  be  left  standing  without  a  breach  of  the  contract  of  carriage ;  there- 
fore a  passenger  may  decline  to  surrender  his  ticket  until  he  has  been  furnished 
with  a  seat.  But  he  cannot  do  this  and  remain  upon  the  train.  He  should  quit 
the  train  at  the  first  suitable  opportunity,  and  bring  action  upon  his  contract. 
He  cannot  insist  upon  riding  in  a  standing  position  until  a  seat  becomes  vacant.* 

§  3.  Duty  to  run  Trains  on  Schedule  Time.  —  It  is  the  duty  of  a  railroad 
company  to  exercise  due  and  reasonable  precaution  and  foresight  that  their  trains 
shall  arrive  and  depart  from  stations  at  the  time  advertised  in  the  time-tables. 
Therefore  a  company  whose  line  connects  with  another,  and  which  has  been 
accustomed  to  run  its  trains  in  connection  with  those  of  the  latter,  and  continues 
to  advertise  to  do  so  although  the  trains  no  longer  run  in  connection  with  each 
other,  vrill  be  responsible  in  damages  to  a  person  who  has  made  his  arrange- 
ments accordingly,  and  only  learned  that  the  trains  did  not  make  connections 
when  he  applied  for  his  ticket.^  But  the  mere  fact  that  a  passenger  has  a  ticket 
with  the  imprint  "Cardiff  to  Newcastle,  via  Midland  Railway,"  does  not  of 
itself  prove  a  contract  or  duty  whereby  the  company  isr;uing  such  ticket  is  bound 
to  have  their  train  run  in  connection  with  a  train  upon  the  "  Midland  Railway  " 
running  to  Newcastle.  Neither  will  representations  of  the  train-men  have  this 
effect.  The  time-tables  of  the  company  should  be  introduced  for  this  purpose.* 
But,  in  the  absence  of  a  special  contract  for  transportation,  railroad  companies 

52  Ind.  .540;  Chicago  etc.  R.  Co.  v.  Randolph,  2  Barker  v.  New  York  etc.  R.  Co.,  supra; 

.").S  111.  510;  Fink  v.  Albany  etc.  R.  Co. ,4  Lans.  s.  c.  sub  nom.  Page  v.  New  York  etc.  R.  Co., 

147.    Even  though  in  such  a  case  the   c  >n-  6  Ducr,  523. 

ductor  takes  up  the  ticket  of  the  passenger,  3  Bass  v.  Chicago  etc.  R.  Co.,  36  Wis.  450; 

and  agrees  to  let  the  passenger  off  at  the  «.  c  39  Wis.  636;  42  Wis.  654;  Willis  v.  Long 

station  as  requested,  this  will  not  bind  the  Island  etc.  R.  Co.,  34  N.  Y.  670;  s.  c.  32  Barb, 

company  to  do  so.    The  duty  of  the  conduc-  399. 

tor  is  to  run  the  train  according  to  the.  pub-  ■>  Davis  v.  Kansas  etc.  R.  Co.,  53  Mo.  317. 

lie  arrangements,  and  he  has  no  power  to  *  Denton  v.  Great  Northern  R.  Co.,  5  F.l. 

change  them.    Ohio  etc.  R.  Co.  u.  Hatton,  60  &  Bl.  860,  a?i<e,  p.  53.    Sec   also   Hamlin    v. 

Ind.  12;  s.  c.  6  Cent.  L.  J.  :iS9.    See  also  Chi-  Great  Northern  R.  Co.,  1   Hurl.  &  N.  408; 

cago  etc.  R.  Co.  v.  Randolph,  supra  Heirn  v.  McCaughan,  32  Miss.  17. 

I  Barker  v.  New  York  etc.  R.  Co.,  24  N.  Y.  o  Hurst  v.  Great  Western  R.  Co.,  19  C.  15. 

.509.    Compare  Hobbs  v.  London  etc.  R.  Co.,  (N.  8.)  310;  s.  c.  11  Jur.  (N.  S.)  730;  34  L.  J. 

I..  R.  10  Q.  B.  111.  (C.  P.)  264 ;  13  Week.  Rep.  950 ;  12  L.  T.  (.v.  s.) 


G8  OBLIGATION    TO    CARRY    ACCORDING    TO    CONTRACT. 


Notes. 


cannot  be  held  to  be  warrantors  or  insurers  that  trains  shall  arrive  and  depart 
precisely  as  indicated  by  the  time-table.  The  publication  of  a  time-table  imposes 
upon  the  company  only  the  obligation  to  use  due  care  and  skill  to  accomplish  this 
result.  Therefore,  where  the  train  of  the  defendants  was  on  account  of  circum- 
stances which  could  not  be  ordinarily  anticipated  greatly  overloaded,  so  that 
it  Avas  necessary  to  drive  past  one  of  its  stations,  on  an  up-grade,  without 
stopping,  whereby  the  plahitiff,  a  season-ticket  holder,  failed  to  get  transpor- 
tation as  usual,  it  was  held  that  the  company  were  not  liable,  as  they  had  done 
all  that  due  care  and  skill  could  suggest  to  transport  the  plaintiff  punctually, 
especially  as  an  extra  train  had  been  sent  back  for  the  accommodation  of  the 
plaintiff  and  others  who  had  been  inconvenienced.^  Any  detention  which  is  due 
to  wilful  and  unreasonable  delay  of  the  conductor  in  charge  of  the  train  is 
properly  attributable  to  the  company  itself,  upon  the  familiar  principle  that 
if  servants  execute  the  business  of  their  master  in  this  manner,  he  will  be  held 
responsible. 2 

Changes,  when  made  in  the  time-tables,  should  be  given  all  the  publicity  of  the 
tables  themselves ;  therefore,  where  the  railroad  company  was  in  the  habit  of 
keeping  a  standing  advertisement  of  its  time-tables  in  the  leading  city  papers,  it 
was  held  that  it  was  not  sufficient  notice  to  the  patrons  of  the  road  of  a  change 
in  the  time  of  running  one  of  its  trains  on  a  certain  evening,  that  printed  notices 
to  this  effect  were  posted  in  the  cars  and  stations  of  the  road  on  the  day  of  the 
change  and  for  a  day  or  two  previous.  Although  the  plaintiff  rode  upon  the 
cars  on  the  day  of  the  change,  no  legal  presumption  that  he  saw  the  notice  arose 
from  the  fact  of  their  being  posted  up.^ 

§  4.  Special  Contracts  for  Carriage.  —  Special  contracts  may  be  made  between 
the  carrier  and  passenger  which  will  superadd  to  his  general  liability.  Thus, 
although  there  is  no  obligation  incumbent  on  the  carrier  to  transport  a  person 
tendering  the  customary  fare  upon  Sunday,  yet  an  express  contract  may  be 
made  by  virtue  of  which  the  carrier  will  be  bound  to  do  so.*  Ordinarily,  the 
carrier  would  be  excused  from  attempting  to  laud  aj)assenger  under  circum- 
stances of  danger,  but  if  this  condition  of  things  is  known  to  the  carrier's 
officer  at  the  time  the  agreement  to  transport  is  made,  a  failure  to  do  so  will 
afford  a  cause  of  action.^  If  a  passenger  has  contracted  for  a  particular  seat,  he 
cannot  be  compelled  to  take  another,^  and  he  may  take  his  seat  at  any  time 
during  the  journey,  and  the  carrier's  agent  is  not  justified  in  filling  his  place 
with  another  passenger.'  The  conductor  of  a  railway  train  has  no  authority  to 
make  an  agreement  with  a  passenger  in  violation  of  the  public  arrangements  for 
operating  the  road.*  Passengers  riding  upon  commutation  tickets  are  bound 
strictly  by  the  terms  of  the  contract  in  such  cases,  and  if  the  contract  requires 

G34.    In  England  the  companies  now  gener-  *  Weed  v.  Panama  R.  Co.,  17  N.  Y.  362. 

ally  protect  themselves  against  the  conse-  *  Sears  v.  Eastern  R.  Co.,  14  Allen,  4S3. 

quences  of  any  irregularity  in  the  running  ■*  Walsh  v.  Chicago  etc.  R.  Co.,  42  Wis. 

of  their  trains,  by  inserting  notices  in  their  23. 

time-tables  to  the  effect  that  they  do  not  *  Porter  v.  The   New   England,    17   Mo, 

warrant  that  the  trains  will  arrive  and  depart  290. 

at  the  precise  times  indicated.    Per  Bovill.  C.  <>  Long  v.  Home,  1  Car.  &  P.  610. 

J.,  in  Lord  v.  Midland  R.  Co.,  L.  R.  2  C.  P.  345.  '  Ker  r.  Mountain,  1  Esp.  27. 

1  Gordon  v.  Manchester  etc.  R.  Co.,  52  N.  8  Ohio  etc.  R.  Co.  v.  Halton,  60  Ind.  12; 

1 1. ^96.  s.  c.  6(;ent.  L.  J.  389. 


SPECIAL    CONTRACTS    FOR    CARRIAGE. 


69 


Right  to  stop  off  and  resume  Journey. 


them  to  produce  such  tickets  whenever  requested,  they  must  do  so;  ^  and  if  by 
the  terms  of  the  contract  the  ticket  has  expired,  by  limitation  of  time  or  other- 
wise, although  the  number  of  miles'  travel  guaranteed  by  its  terms  have  not  been 
exhausted,  the  company  will  not  be  obliged  to  afford  further  transportation  upon 
it.2  A  railroad  company  may  by  special  contract  restrict  the  holders  of  a  certain 
class  of  tickets  to  a  special  train,  but  if  the  ticket  is  of  such  a  character  in  its 
general  appearance  as  to  give  the  holder  no  notice  of  this  fact,  and  he  has  no 
information  of  it,  the  company  will  not  be  justified  in  ejecting  the  holder  of 
such  a  ticket  from  its  regular  trains.^ 

If  a  railway  company  has  made  a  special  contract  for  the  transportation  of 
passengers  upon  excursion  tickets  over  their  line  in  connection  with  another 
line,  it  will  be  responsible  for  the  damages  attending  its  failure  to  run  trains  on 
the  return  trip  m  connection  with  the  other  line  as  advertised.* 

§  5.  Right  to  stop  off  and  resume  Journey  on  the  same  Ticket.  —  It  may 
be  stated  as  a  general  rule  that  the  contract  for  conveyence  entered  into  between 
the  carrier  and  the  passenger  is  an  entirety.  Neither  party  can  require  "the  other 
to  perform  it  in  parts.  The  passenger  has  no  right  to  leave  the  conveyance  at 
an  intermediate  point,  without  the  carrier's  consent,  and  afterwards  demand  that 


1  Bennett  v.  Railroad  Co.,  7  Phila.  11; 
Downs  V.  New  York  etc.  R.  Co.,  36  Conn. 
287;  Ripley  v.  New  Jersey  etc.  Transp.  Co., 
31  N.  J.  L.  388;  Crawford  v.  Cincinnati  etc. 
R.  Co.,  26  Ohio  St.  580;  Woodard  v.  East- 
ern Counties  R.  Co.,  30  L.  J.  (M.  C.)  196. 
But  see  Maples  v.  New  York  etc.  R.  Co.,  38 
Conn.  557.  In  Cooper  v.  London  etc.  R.  Co., 
4  Exch.  Div.  88,  the  plaintiff  bought  from 
the  defendant  company  a  season  ticket 
entitling  him  to  travel  by  their  railway  for 
one  month,  paying  the  usual  charge  for  such 
a  ticket  and  ten  shillings  deposit,  and 
agreed  to  be  bound  by  certain  conditions. 
The  fourth  condition  was  that  the  ticket  "  is 
to  be  considered  as  the  property  of  the 
company,  to  be  delivered  up  at  the  secre- 
tary's office  on  the  day  after  expiry,  or  on 
forfeiture."  The  sixth  condition  was  that 
"the  ticket  and  all  benefit  and  advantages 
thereof,  including  the  deposit,  shall  be 
absolutely  forfeited  to  the  company  if  it 
shall  be  lost,  or  in  case  of  any  breach  of  any 
of  the  above  conditions."  Some  few  days 
"  after  the  expiry"  the  plaintiff  delivered 
up  the  ticket  and  claimed  the  deposit, 
payment  of  which  was  refused  on  the 
ground  that  the  ticket  should  have  been 
presented  on  the  day  after  expiration.  It 
was  held  that  each  of  the  above  condi- 
tions was  a  condition  precedent  to  a  right 
to  the  return  of  the  deposit;  and  that,  as 
the  ticket  had  not  been  delivered  up  "  on 
the  day  after  expiry,"  the  conditions  had 
not  been  performed,  the  deposit  was  for- 


feited, and  the  plaintiff  could  not  maintain 
the  action. 

2  Powell  V.  Pittsburgh  etc.  R.  Co.,  25  Ohio 
St.  70;  Terre  Haute  etc.  R.  Co.  v.  Fitzgerald, 
47  Ind.  79;  Lillis  v.  St.  Louis  etc.  R.  Co.,  64 
Mo.  464;  Sherman  v.  Chicago  etc.  R.  Co.,  40 
Iowa,  45. 

3  Marony  v.  Old  Colony  etc.  R.  Co.,  106 
Mass.  153;  Nolan  v.  New  York  etc.  R.  Co., 
9  Jones  &  Sp.  541.  In  the  late  case  of 
Crosby  v.  Maine  Central  R.  Co.,  69  Me.  418, 
8.  c.  8  Reporter,  819,  the  facts  were  that 
a  band  of  musicians  was  employed  by  the 
defendant  to  attend  an  excursion  from  the 
town  of  Dexter  to  Belfast,  their  compensa- 
tion being  the  sum  of  $'25  and  a  ticket  for  a 
lady  to  each  member  of  the  band.  The  de- 
fendant's agent  prepared  tickets  for  the 
ladies  of  the  meinbers  of  the  band,  differing 
from  common  tickets,  being  pieces  of  card- 
board on  which  was  printed  "Maine  Cen- 
tral R.  R.,  July  30, 1877,  Dexter,"  and  nothing 
more.  A  brother  of  the  plaintiff,  who  was  a 
member  of  the  band,  gave  one  of  the  tickets 
above  described  to  the  plaintiff,  who  claimed 
the  right  to  ride  upon  it,  and  attempted  to 
do  80,  but  was  compelled  to  leave  the  train 
before  it  reached  its  destination.  In  an 
action  for  this  expulsion,  the  court  below 
charged  that  the  plaintiff  had  no  right  to 
passage  unless  by  virtue  of  a  special  con- 
tract; the  ticket  produced  was  for  a  lady, 
and  hence  he  could  claim  no  rights  under  it. 
Exceptions  to  this  charge  wci-e  overruhMl. 

*  Hawcroft  v.  Gt.  Nor.  R.  Co.,  ante,  p.  59. 


70  OBLIGATION    TO    CAUKY    ACCORDING    TO    CONTRACT. 


Notes. 


the  contract  be  completed  according  to  his  convenience.'  Such  a  rule  as  this  is 
necessaiy  for  the  prevention  of  fraud.^  The  passenger,  ou  resuming  his  journey 
after  leaving  a  railroad  train  without  permission  of  the  conductor,  can  claim  no 
rights  under  his  ticket.  The  contract  for  carriage  is  broken  by  his  thus  leaving 
the  train,  and  he  becomes  a  trespasser,  and  may  be  rightfully  ejected  from  the 
train.^  The  production  of  a  conductor's  check  or  ticket,  unless  it  expressly 
authorizes  the  passenger  to  stop  over  at  such  a  place,  docs  not  enhance  the  pas- 
senger's rights  in  the  premises.  Such  a  check  is  simply  evidence  that  the  fare 
has  been  paid  for  a  continuous  journey.*  Neither  will  it  avail  the  passenger, 
under  such  circumstances,  that  he  was  told  by  an  agent  of  the  company  at  a  way- 
station  that  he  would  be  at  liberty  to  leave  the  train  and  proceed  on  his  journey 
ou  another,  and  that  a  conductor's  check  which  he  held  was  "good  until  taken 
up."  The  presumption  is  that  a  ticket-agent  at  a  way-station  has  no  authority 
to  change  or  modify  contracts  between  the  company  and  its  through  passengers ; 
and  the  onus  of  rebutting  such  presumption  rests  with  the  party  alleging  the 
contrary.*  A  passenger  holding  a  ticket  bearing  upon  its  face  the  stipulation 
"  Good  for  this  day  and  train  only  "  will  not  be  entitled  to  leave  the  train  after 
his  journey  has  commenced,  and  afterwards,  though  ou  the  same  day,  claim  pas- 
sage on  this  ticket.8  Even  though  it  has  been  customary  upon  a  certain  railroad 
to  allow  passengers  to  stop  over  at  stations  intermediate  upon  their  journey, 
without  detriment  to  their  right  to  resume  travel  upon  the  same  ticket,  yet 
the  railroad  company  may  at  any  time  make  a  regulation  to  the  contrary,  and  a 
passenger  will  be  bound  by  such  regulation  whether  he  has  notice  of  it  or  not.^ 

§  6.  Limited  Tickets.  —  A  railway  company  may  make  a  regulation  limiting 
the  time  within  which  the  ticket  will  be  received  for  passage,  at  the  expiration 
of  which  time  the  holder  can  claim  no  rights  under  it.®    And  whei'e  a  ticket 

1  Stone  V.  Chicago  etc.  R.  Co.,  47  Iowa,  82;  which  such  train  stops,  and  that  such  ticket 

•s.  c.  10  Ch.  Leg.   X.    78;    6    Reporter,  489;  shall  be  good  for  a  passage,  as  above,  for  six 

Hamilton  v.  New  York  etc  K.  Co.,  51  N.  Y.  years  from  the  day  it  is  lirst  used.    Dryden 

100;  Cheney  v.  Boston  etc.  R.  Co.,  11  Mete.  v.  Grand  Trunk  R.  Co.,  60  Me.  512. 

121 ;  Cleveland  etc.  R.  Co.  v.  Bartram,  11  Ohio  -  Beebe  v.  Ayers,  supra. 

St.  457;  The  State  v.  Overton,  24  N.  J.  L.  435;  ^  Dietrich  v.  Pennsylvania  R.  Co.,  71  Pa. 

Johnson  v.  Concord   R.    Co.,  46  N.  H.   213;  St.  432;  Vankirk  v.  Pennsylvania  R.  Co.,  76 

Beebe  v.  Ayers,  28  Barb.  275;  Drew  v.  Ceu-  Pa.  St.  66.    As  to  what  effect  declarations  of 

tral  Pacific  R.  Co.,  51  Caj.  425;    Briggs    v.  the  company's  ticket-seller  or  conductor  in 

Grand  Trunk  R.  Co.,  24  Upper  Canada  Q.  regard  to  the  right  to  stop  over  wiU  have 

B.  510;  Craig   v.   Great  Western  R.  Co.,  24  upon  the  contract  for  carriage,  see  Burnham 

Upper  Canada  Q.  B.  504;  Barker  v.  Coflin,  v.  Grand  Trunk  K.  Co.,  63  Me.  298;  Denny  v. 

31  Barb.  556;  Breen  v.  Texas  etc.  R.  Co.,  50  New  York  etc.  R.  Co.,  5  Daly,  50;  Yankirk  r. 

Texas,  43;  Gale  v.  Delaware  etc.  R.  Co.,  7  Pennsylvania  R.  Co  ,  supra. 

Hun,  670;  Oil  Creek  etc.  R.  Co.  v.  Clark,  72  *  The  State  v.  Overton,  24  N.  J.  L.  435; 

Pa.  St.  231;  Terry  r.  Flushing  etc.  R.  Co.,  13  Cheney  v.  Boston  etc.  R.  Co.,  11  Mete.  121; 

Hun,  359;  Dunphy  v.  Erie  R.  Co.,  10  Jones  &  McClure  v.  Phila.  etc.  R.  Co.,  34  Md.  532.    But 

Sp.  128.    But  in  some  States  this  matter  is  see  Palmer  v.  Railroad  Co.,  3  So.  Car.  .580. 

regulated  by  statute.    In  Maine  it  is  enacted  =  McClure   v.  Philadelphia   etc.    R.    Co., 

(Pub.  Laws  1871,  chap.  223)  that  no  railroad  supra. 

company  shall  limit  the  right  of  a  ticket-  ^  Gale  v.  Delaware  etc.  R.  Co.,  7  Hun,  670. 

holder  to  any  given  train;    but  that  such  ^  Johnson  i'.  Concord  etc.  R.  Co.,  46  N.  H. 

ticket-holder  shall  have  the  right  to  travel  213.    See  also   Dietrich  r.  Pennsylvania  B 

on  any  train,  whether  regular  or  express  Co.,  71  Pa.  St.  432. 

train,  and  to  stop  at  any  of  the  stations  at  *  HUl  v.  Syracuse  etc.  R.  Co.,  63  X.  Y.  101; 


RIGHT  TO  STOP  OFF  AXD  RESUME  JOURNEY.         71 


Limited  Tickets. 


contained  the  stipulation  "  Good  for  this  day  only,"  the  mere  verbal  declara- 
tions of  the  company's  ticket-agent,  made  subsequent  to  the  purchase  of  such 
ticket,  as  to  its  being  good  at  any  time  thereafter,  will  not  constitute  a  valid 
contract  in  the  absence  of  proof  that  the  agent  had  authority  to  make  an  oral 
contract  for  the  company,  varying  the  one  indicated  by  the  ticket.^  A  commuta- 
tion ticket  good  for  a  certain  number  of  miles  of  travel,  but  limited  by  its  terms 
to  be  used  within  a  certain  time,  is  worthless  after  the  expiration  of  such  time, 
and  the  holder  cannot  claim  transportation  under  it,  although  the  number  of 
miles  of  travel  guaranteed  by  it  have  not  yet  been  exhausted.^  Similarly,  a 
commutation  ticket  good  for  one  thousand  miles'  travel  upon  two  roads  forming 
one  continuous  line  (issued  by  a  company  owning  one  road  and  leasing  the 
other),  three  hundred  miles  to  be  travelled  upon  one  road  and  seven  hundred 
miles  to  be  travelled  upon  the  other,  as  indicated  by  differently  colored  figures, 
does  not  entitle  the  holder  to  travel  upon  a  division  of  the  road  after  the  number 
of  miles  specified  for  that  division  have  been  entirely  punched  out  of  the  ticket, 
although  there  yet  remain  upon  the  ticket  figures  for  the  other  division,  not 
punched  out,  amounting  to  the  number  of  miles  for  which  the  ticket  is  offered.^ 
But  a  ticket  good  for  a  limited  time  is  not  to  be  regarded  as  good  at  all  events, 
in  whatever  manner  used.  It  is  good,  subject  to  other  regulations  of  the  com- 
pany. Thus,  a  ticket  bearing  upon  its  face  "  Good  for  this  day  and  train  only  " 
is  good  only  for  one  continuous  passage  upon  the  day  of  its  date.*  If  a  ticket 
has  ceased  to  be  good  for  the  reason  that  it  is  a  limited  ticket  and  the  limitation 
has  expired,  or  because  the  holder  has  forfeited  his  rights  under  it,  the  railroad 
company  does  not  waive  its  right  to  refuse  to  carry  the  holder  of  it  merely 
because  the  ticket  has  been  afterwards  punched  by  a  baggage-man,=  or  even 
recognized  by  one  of  the  conductors  of  the  company,  and  the  holder  permitted 
to  ride  upon  it.^ 

Farewell  V.  Grand  Trunk  etc.  R.  Co., 15  Upper  2  Powell  v.  Pittsburgh  etc.  R.  Co.,  25  Ohio 

Canada  C.  P.  427;  Ehnoie  v.  Sands,  54  N.  Y.  St.  70;   Sherman  v.  Chicago  etc.  R.  Co.,  40 

512;  Barker  v.  Coflin,  31  Barb.  5.56;  Boice  v.  Iowa,  45;  Lillis  v.Qt.  Louis  etc.  R.  Co.,  64  Mo^ 

Hudson  River  R.  Co.,  61  Barb.  611;  Boston  464. 

etc.  R.  Co.  V.  Proctor,  1  Allen.  267 ;  Shedd  v.  a  TeiTe  Haute  etc.  R.  Co.  v.  Fitzgerald,  47 

Troy  etc.  R.  Co.,  40  Vt.  88 ;  The  State  v.  Camp-  Ind.  7'.i. 

bell,  32  N.  J.  L.  309;  Weiitz  v.  Erie  R.  Co.,  5  1  Gale  v.  Delaware  etc.  R.  Co.,  7  Hun,  670. 

Thomp.  &  C.  5.56;  s.  c.  3  IIuu,  241;  Nelson  v.  6  Wentz  v.  Erie  R.  Co.,  5  Thomp.  &  C.  556; 

Long  Island  etc.  R.  Co.,  7  Ilun,  140;  Brigg.s  s.  c.  3  Hun,  241. 

V.  Grand  Trunk  R.  Co.,  24  Upper  Cannda  Q.  e  Dietrich  r.  Pennsylvania  R.  Co.,  71  Pa. 

B.  510.    But  it  has  been  held  that  a  ticket  St.  432;  Sherman  v.  Chicago  etc.  R.  Co..  40 

having  the   words  "Good   this  trip   only"  Iowa,  45;  Wakelicld  i-.  South  Bostou  R.  Co., 

ui)on  its  face,  entitles  the  holder  to  a  pas-  117  Mass.  544;  Johnson  r.  Concord  R.  Co.,  46 

eage  on  a  subsequent  day  as  well  as  the  d;iy  N.  H.  213;  Hill  v.  Syracuse  etc.  R.  Co.,  63  N. 

it  bears  date,  for  the  reason  that  such  words  Y.  101;   Nolan  v.  New   York  etc.  R.  Co.,  9 

do    not  relate   to    time,  but  to  a  journey.  Jones  &  Sp.  541;   Stone  v.  Chicago  etc.  R. 

Pier  V.  Finch,  24  Barb.  514.  Co.,  47  Iowa,  82 ;  Keeley  v.  Boston  etc.  R.  Co., 

'  Boice  V.  Hudson  River  R.  Co.,  61  Barb.  67  Me.  163;  s.  c.  6  Cent.  L.  J.  382;  17  Alb.  L.  J. 

611.    See  also  McClure  v.  Phila.  etc.  R.  Co.,  :}66.    But  see  Cunningham  v.  Grand  Trunk 

34  Md.  632.  B.  Co.,  9  Lower  Canada  Jur.  57. 


CHAPTER    lY. 

OF  THE  OBLIGATION  OF  THE  CARRIER  TO  FURNISH  SAFE 
AND  CONVENIENT  STATIONS  AND  APPROACHES. 


Leading  Cases:  1.  Toomey  v.  London,  Brighton,  and  South  Coast  Bailwatf 
Company.  —  lujuriesto  passengers  from  defects  in  the 
carrier's   stations   and  grounds. 

2.  Cornman  v.   Eastern    Counties  Bailway    Company.  —  The 

same  subject. 

3.  Longmore  v.  Great  Western  Railway  Company.  —  The  same 

subject. 

4.  Nicholson  v.  Lancashire  and  Yorkshire  Bailway  Company.  — 

The  same  subject. 
6.  Crofter  v.  Metropolitan  Bailway   Company.  —  The  same 
subject. 

6.  McDonald  v.   Chicago   and  North- Western  Bailroad   Com- 

2mny.  — The  same  subject. 

7.  Pittsburgh,  Fort  Wayne,  and  Chicago  Bailroad  Company  v. 

Brigham.  —  The  same  subject. 

NOTES^     §  1.  The  extent  of  this  duty. 

2.  To  whom  this  duty  is  owed. 

3.  Illustrations  of  negligence  in  this  particular. 


1.   INJURIES    TO    PASSENGERS    FROM    DEFECTS    IN    CARRIER'S   STA- 
tions and  grounds. 

Toomey   v.  London,  Brighton,  and   South   Coast   Railway 

Company.* 

English  Court  of  Common  Pleas.,  1857. 

The  Right  Hon.  Sir  Alexander  James  Cockburn,  Kt.,  Lord  Chief  Justice. 
Sir  Cresswell  Cresswell,  Kt., 

"    Edward  Vaughan  Williams,  Kt., 

"    Richard  Budden  Crowder,  Kt.,      \  Justices. 

"    James  Shaw  Willes,  Kt., 

"    John  Barnard  Byles,  Kt., 

Injury  to  Passenger  at  Railway  Station.  — On  the  platform  of  a  railway  station  there 
were  two  doors  in  close  proximity  to  each  other;  the  one  for  necessary  purposes  had 

*  Reported,  3  C.  B.  (n.  s.)  U6. 
(72) 


DEFECTIVE    KAILAVAY    STATIONS.  73 

English  Court  of  Common  Pleas. 

painted  over  it  the  worrls  "For  gentlemen,"  the  other  had  over  it  the  words  "Lamp- 
room."  The  plaintiff,  having  occasion  to  go  to  the  urinal,  inquired  of  a  stranger  where 
he  should  find  it,  and,  having  received  a  direction,  by  mistaJie  opened  the  door  of  the 
"lamp -room,"  and  fell  down  some  steps  and  was  injured.  In  an  action  against  the 
railway  company,  it  was  held  that,  in  tlie  absence  of  evidence  that  the  place  was 
more  than  ordinarily  dangerous,  the  judge  was  justified  in  nonsuiting  the  plain- 
tiflf,  on  the  ground  that  there  was  no  evidence  of  negligence  on  the  part  of  the 
company. 

This  was  an  action  in  whicli  the  plaintiff  sought  to  recover  damages 
against  the  London,  Brighton,  and  South  Coast  Railway  Company  for 
an  injury  sustained  by  the  plaintiff  from  alleged  negligence  on  the  part 
of  their  servants. 

The  declaration  stated  that  before  and  at  the  time  of  committing  of 
the  grievances  thereinafter  mentioned  the  defendants  were  possessed  of 
a  public  railway  station,  to  wit,  at  Forest  Hill,  for  the  reception  of  pas- 
sengers in  and  by  the  defendants'  railway,  for  the  profit  and  advantage 
of  the  defendants  ;  and  by  the  reason  of  the  possession  and  use  of  the  said 
railway  station  by  the  defendants  for  the  purpose  aforesaid,  they  ouglit 
to  have  kept  the  same  in  a  reasonably  safe  and  secure  condition,  and 
so  as  not  to  be  dangerous  to  persons  lawfully  and  properly  using  the 
same ;  nevertheless  the  defendants  failed  in  such  duty,  and,  by  means 
of  the  mere  neglect  and  default  of  the  defendants  in  that  behalf,  the 
plaintiff,  who  was  lawfully  in  and  using  the  said  station  as  a  passenger 
of  the  defendants  and  with  their  permission  and  for  their  profit  and 
advantage,  fell  through  a  door  which  the  defendants  there  carelessly^ 
negligently,  and  improperly  left  open  and  unguarded  in  the  said  station, 
and  which  was,  by  the  neglect  and  default  of  the  defendants  in  that 
behalf,  dangerous  to  persons  lawfully  and  properly  using  the  same,  into 
a  deep  cellar  or  hole,  and  thereby  sustained  divers  bodily  injuries  and 
became  permanently  wounded  in  health,  and  disabled  from  following 
his  trade  of  hawker  or  otherwise  earning  his  living,  and  was  put  to 
expense,  and  spoiled  his  clothes  which  he  had  on,  and  lost  divers  of  his 
goods  and  money  which  he  had  with  him  when  lie  fell,  and  was  and  is 
otherwise  injured.     And  the  plaintiff  claimed  £500. 

The  defefidants  pleaded  not  guilty.  The  cause  was  tried  before 
Cresswell,  J.,  at  the  first  sitting  at  Westminster  in  this  term.  The 
facts  were  as  follows :  The  plaintiff,  a  poor  and  illiterate  person,  who 
carried  on  the  employment  of  a  hawker,  went  to  the  Forest  Hill  station 
of  the  London,  Brighton,  and  South  Coast  Railway  for  the  purpose  of 
proceeding  to  London  by  the  10:30  p.  m.  train.  Whilst  waiting  there, 
he  inquired  of  a  person  on  the  platform,  unconnected  with  the  railway, 
where  he  should  find  an  urinary.    This  person  told  him  to  go  to  the  right. 


74  DUTY    AS    TO    STATIONS    AND   APPROACHES. 

Toomey  v.  London,  Brighton,  and  South  Coast  Railway  Company. 

He  did  so,  aud  found  two  doors,  upon  one  of  which  was  painted  the 
words  "For  gentlemen,"  and  upon  the  other  the  words  "Lamp-room  ;  " 
there  being  a  light  over  the  former,  but  none  over  the  latter.  The 
plaintiff,  being  in  a  hurry,  and  unable  to  read,  opened  the  wrong  door, 
stepped  forward,  and  fell  down  some  steps,  breaking  two  of  his  ribs 
and  otherwise  seriously  hurting  himself.  There  was  no  evidence  as  to 
the  descriptiiju  of  the  steps  down  which  the  plaintiff  fell,  nor  as  to  the 
state  in  which  tiie  door  of  the  lamp-room  was  ordinarily  kept ;  but  the 
plaintiff's  son  stated  that  when  he  went  some  time  after  the  accident 
to  look  at  the  place,  he  found  the  door  locked. 

On  the  part  of  the  defendants  it  was  submitted  that  there  was  no 
evidence  to  go  to  the  jury  of  negligence,  and  that  the  accident  was 
attributable  entirely  to  the  plaintiff's  own  want  of  caution  in  going 
hastily  and  in.  the  dark  through  a  strange  door. 

The  learned  j  udge  was  of  this  opinion ;  and  the  plaintiff  was  non- 
suited, with  leave  to  move  to  enter  a  verdict  for  £35  (agreed  damages) 
if  the  court  should  be  of  the  opinion  that  there  was  evidence  which 
ought  to  have  been  submitted  to  the  jury. 

Pigott,  serjt.,  now  moved  accordingly. — The  question  is  whether 
there  was  any  evidence  of  negligence  on  the  part  of  the  company  or 
their  servants  ;  if  there  was,  it  should  have  been  left  to  the  jury.  Rail- 
ways are  constructed  for  the  use  of  all  classes  of  persons,  whether 
literate  or  otherwise.  Travellers  of  all  sorts  use  them  at  all  times ;  and 
the  rapidity  with  which  things  are  conducted  at  the  stations  leaves  so 
little  time  for  reflection,  that  it  is  incumbent  on  the  companies  so  to 
order  them  as  to  prevent  the  possibility  of  an  accident  like  this  occur- 
ring. This  is  not  an  action  for  the  breach  of  a  common-law  duty,  but 
an  action  of  tort  founded  on  contract,  as  was  said  by  IVIadle,  J.,  in 
Martin  v.  Great  Northern  Railway  Company ^^  where  an  action  was 
held  to  lie  against  the  defendants  for  insufficiently  lighting  a  station, 
wiiereby  the  plaintiff,  in  running  across  the  railway  to  get  to  a  train, 
fell  over  a  switch-handle  and  was  injured.  [Williams,  J. — If  the 
plaintiff  had  taken  ordinary  care,  the  accident  would  not*  have  hap- 
pened. He  should  not  have  gone  so  hastily  through  a  strange  door.] 
He  could  not  expect  a  door  in  such  a  situation  to  lead  him  to  any 
danger.  The  door  should  have  been  kept  locked.  Suppose  it  had  been 
made  to  open  inwards,  and  a  person  leaning  against  it  fell  through, 
would  it  be  any  answer  on  the  part  of  the  company  to  say  that  the  door 

1  16  C.  B.  179. 


DEFECTIV?:    RAILWAY    STATIONS.  75 


Eunlish  Court  of  Common  Pleas. 


was  not  intended  for  people  to  lean  against?  In  Taylor  on  Evidence'^ 
it  is  said:  ''Questions  of  reasonable  skill  or  care,  clue  diligence,  and 
<fross  negligence  must,  in  the  great  majority  of  instances,  be  determined 
liy  the  jury,  since  the  judges  can  rarely  have  materials  which  will  enable 
tliem  to  decide  such  questions  by  rules  of  law.  Thus,  if  an  action 
be  brought  against  a  surgeon  for  negligence  in  the  treatment  of  his 
patient,  —  per  Taunton,  J.,  in  Doorman  v.  Jenkins,'^  —  or  against  a 
gratuitous  bailee  for  gross  carelessness  in  losing  the  property  intrusted 
to  his  care, 3  what  law  can  possibl}'  define  whether  such  and  such  con- 
duct amounts  to  sufficient  negligence  on  the  part  of  the  defendant  to 
entitle  the  plaintiff  to  a  verdict?  In  these  and  the  like  cases,  therefore, 
the  question  has  usually  been  left  entirely  to  the  jury ;  and  even  when 
tliey  have  found  a  verdict  in  opposition  to  the  opinion  of  the  presiding 
judge,  the  court  has  generally  refused  to  grant  a  new  trial."  This  is 
not  like  the  case  of  negligence  on  the  part  of  an  attorney,  which  is  a 
mixed  question  of  law  and  fact. 

Williams,  J.^  —  I  am  of  the  opinion  that  there  should  be  no  rule  in 
this  case.  I  think  there  was  no  evidence  of  negligence  on  the  part  of 
the  company  or  their  servants  which  ought  to  have  been  submitted  to 
tlie  jury.  It  is  not  enough  to  say  that  there  was  some  evidence;  for 
every  person  who  has  had  any  experience  in  courts  of  justice  knows 
very  well  that  a  case  of  this  sort  against  a  railway  company  could  only 
be  submitted  to  a  jury  with  one  result.  A  scintilla  of  evidence,  or  a 
mere  surmise  that  there  may  have  been  negligence  on  the  part  of  the 
defendants,  clearly  would  not  justify  the  judge  in  leaving  the  case  to 
the  jury;  there  must  be  evidence  upon  which  they  might  reasonably 
and  properly  conclude  that  there  was  negligence.  All  that  appeared 
was,  that  the  plaintiff  inquired  of  a  stranger  the  way  to  the  urinal,  and 
being  told  to  go  in  a  particular  direction  where  there  were  two  doors, 
unfortunately  opened  the  wrong  one,  and  through  his  own  carelessness 
fell  down  some  steps.  If  there  had  been  any  e\idence  to  show  that 
these  steps  were  more  than  ordinarily  dangerous,  that  possibly  might 
liave  led  to  a  different  conclusion.  But  all  that  appears  is  that  the 
door  in  question  led  down  some  steps  into  a  room  which  was  used 
for  the  purposes  of  the  company  and  not  for  the  convenience  of 
the  public.  I  cannot  say  that  there  was  such  evidence  of  negligence 
in  the  defendants  as  the  learned  judge  was  bound  to  leave  to  the  jury. 

>  VoL  1  (2(1  ed.).  p.  44,  §  31-  *  Cackburn,  C.  J.,  and  Crowder,  J.,  being 

«  2  Ad.  &  E.  261;  «.  c.  4  Nev.  &  M.  174.  shareholders  in  tlie  company,  declined  to 

*  Jbid,  take  part  in  the  diacussion. 


76  DUTY    AS    TO    STATIONS    AND    APPROACHES. 

Cornman  v.  Eastern  Counties  Railway  Company. 

WiLLES,  J. — I  am  entirely  of  the  same  opinion.  In  order  to  estab- 
lish a  case  of  negligence  against  the  defendants,  it  was  incumbent  on 
the  plaintiff  to  prove  some  fact  which  was  more  consistent  with  neg- 
ligence than  with  the  absence  of  it.  There  was  nothing  of  the  sort 
proved  here.  There  was  nothing  to  show  that  the  door  and  the  steps 
beyond  were  more  than  ordinarily  dangerous ;  and  it  was  necessary  and 
proper  that  something  of  the  sort  should  be  there  for  the  convenient 
use  of  the  station  by  the  company.  ''  It  would  be  difficult  so  to  arrange 
every  part  of  a  station  as  to  render  it  impossible  for  careless  persons 
to  meet  with  injury.  I  think  the  plaintiff  failed  to  make  out  that  he 
sustained  the  injury  complained  of  through  any  negligence  of  the 
company  or  their  servants. 

Hule  refused. 


2.  the  same  subject. 
Cornman  v.  Eastern  Counties  Railway  Company.* 

English  Court  of  Exchequer,  1859. 

The  Right  Hon.  Sir  Frederick  Pollock,  Kt.,  Chief  Baron. 
Sir  Samuel  Martin,  Kt., 

"    George  William  Wilshere  Bramwell,  Kt., 

"    William  Henry  Watson,  Kt., 

"    William  Fry  Channell,  Kt., 


Barons. 


Injury  to  Passeng-er  from  Weighing-Machine  on  Platform.  —  The  defendants,  a  rail- 
way company,  had  on  their  platform,  stauding  against  a  pillar  which  passengers  passed 
ingoing  to  and  coming  from  the  train,  a  portable  weighing-machine  which  was  used 
for  weighing  passengers'  luggage,  and  the  foot  of  which  was  elevated  about  six  inches 
above  the  level  of  the  platform.  It  was  unfenced,  and  had  stood  in  the  same  position 
without  any  accident  having  occurred  to  persons  passing  it,  for  about  iive  years.  The 
plaintiff,  being  at  the  station  on  Christmas  Day  inquiring  for  a  parcel,  was  driven  by 
the  crowd  against  the  machine,  caught  his  foot  in  it,  and  fell  over  it.  It  was  held  that 
there  was  no  evidence,  of  negligence  to  go  to  the  jury  on  the  part  of  the  company,  the 
machine  being  in  a  situation  in  which  it  might  have  been  seen,  and  the  accident  not 
being  shown  to  be  one  which  could  have  been  reasonably  anticipated. 

Declaration:  That  the  defendants,  at  the  time  of  the  grievances, 
were  the  owners  of  a  railway  on  which  they  were  used  and  accustomed 
to  carry  passengers  and  parcels  for  hire,  and  were  also  possessed  of  j^ 

•  Reported,  4  Hurl.  &  N.  781. 


OBSTRUCTED    RAILWAY    PLATFORMS.  77 

English  Court  of  Exchequer. 

railway  station,  and  platform  abutting  on  the  railway,  upon,  along,  and 
over  which  all  persons  lawfully  being  at  the  said  station  were  used  and 
accustomed  and  were  authorized  by  the  defendants  to  pass  and  repass ; 
and  whereas  at  the  time  of  the  committing  of  the  grievances  the 
plaintiff  was  expecting  and  about  to  receive  a  parcel  then  carried  by  a 
certain  train  by  the  .defendants  at  their  request  for  reward,  and  to 
receive  which  parcel  the  defendants  had  authorized  the  plaintiff  to  go 
and  pass  and  repass  upon,  along,  and  on  the  said  platform,  the  same 
then  being  the  regular,  usual,  and  accustomed  way  for  him  to  go  and 
pass  and  repass  for  the  purpose  aforesaid,  of  which  the  defendants  had 
notice,  nevertheless  the  defendants  carelessly,  negligently,  and  improp- 
erly then  suffered  and  permitted  a  weighing-machine  to  be  and  remain 
upon  the  said  platform,  in  an  unreasonable  and  improper  place  and  a 
place  that  was  highly  dangerous  to  persons  going,  passing,  and  repass- 
ing upon,  along,  and  on  the  platform  in  case  the  same  should  be  greatly 
crowded  with  persons,  and  suffered  the  platform  to  be  greatly  crowded 
without  taking  reasonable  means  of  preventing  accidents,  by  means 
whereof  the  plaintiff,  whilst  he  was  upon  the  said  platform  with  the 
consent  of  the  defendants,  was  on  account  of  the  defendants'  careless 
and  negligent  conduct  and  want  of  due  precautions  cast  and  thrown  on 
the  weighing-machine,  etc. 
Plea,  not  guilty. 

At  the  trial  before  Channell,  B.,  at  the  London  Sittings  in  Trinity 
Term,  the  plaintiff  proved  that  on  the  25th  of  December,  1858,  he 
went  to  the  luggage  counter  at  the  arrival  platform  of  the  defendants' 
railway  to  get  a  parcel,  and  while  he  was  standing  there  a  train  arrived ; 
the  passengers  from  the  train,  who  were  very  numerous,  pressed  him 
forward,  and  he  was  driven  against  a  weighing-machine  on  the  platform, 
which  he  did  not  see ;  his  foot  caught  the  corner  of  the  machine ;  he 
fell  and  broke  his  knee-cap.  The  machine  stood  against  a  pillar ;  he 
would  not  have  fallen  had  the  machine  not  been  there.  It  was  proved 
that  when  there  were  large  ifumbers  of  passengers  they  passed  on  each 
side  of  the  weighing-machine.  A  witness  stated  that  at  the  Great 
Northern,  North-Western,  Great  Western,  South-Eastern,  and  South- 
western Railway  stations  the  weighing-machines  are  flush  with  the  floor. 
At  the  Great  Western  station  they  are  enclosed  by  railings.  The 
weighing-machine,  which  was  used  for  weighing  passengers'  luggage, 
had  been  in  the  same  situation  for  five  years.  It  was  a  portable 
machine,  which  is  convenient  for  weighing  passengers'  goods.  A  model 
was  produced  showing  that  the  foot  on  which  goods  were  placed  for 


78  DUTY   AS    TO    STATIONS    AND    APPROACHES. 

Cornmau  v.  Eastern  Counties  Railway  Company. 

the  purpose  of  being  weighed  was  six  or  eight  inches  above  the  level 
of  the  floor  of  the  platform. 

The  learned  judge  told  the  jury  that  the  weighing-machine  was  a 
thing  which  any  person  on  th6  platform  might  have  an  opportunity  of 
seeing,  and  therefore  that  the  case  did  not  resemble  that  of  an  accident 
from  falling  into  an  unfenced  hole  ;  that  one  company  was  not  bound  to 
adopt  all  the  arrangements  of  another ;  and  he  asked  them  whether  or 
not  they  thought  that  the  machine  was  so  constructed  and  in  such  a 
position  as  that,  without  any  negligence  of  persons  coming  on  the  plat- 
form, accidents  might  occur.  The  jury  found  a  verdict  for  the  plaintiff. 
Leave  was  reserved  to  the  defendants  to  move  to  enter  a  nonsuit  if  the 
court  should  be  of  opinion  that  there  was  no  evidence  to  go  to  the  jury. 
Ballantine,  Serjt.,  having  obtained  a  rule  nisi  accordingly,  — 
Parry,  Serjt.,  and  H.  James  now  showed  cause.  —  Upon  the  pleadings, 
it  must  be  taken  that  the  plaintiff  was  lawfully  on  the  platform  with  the 
consent  of  the  defendants.  It  was  negligence  in  the  compan)'  to  place 
a  weighing-machine  in  such  a  position  that  persons  on  the  platform  are 
liable  to  sustain  injury  by  being  driven  against  it  by  the  pressure  of 
great  crowds,  such  as  might  naturally  be  expected  to  congregate  in 
such  a  place  at  certain  times.  The  verdict  of  the  ]\xx'y  shows  that  the 
plaintiff  did  not  contribute  to  the  accident  by  any  negligence  of  his 
own.  [Bramwell,  B. — In  a  case  against  the  South-Easteru  Railway 
Company,  tried  before  me,  in  which  mj'  brother  Hill  was  counsel  for 
the  company,  two  flaps  on  the  platform  had  been  imperfectly  turned 
back ;  the  plaintiff,  passing  along  the  platform,  tripped,  and  fell  in, 
I  suggested  that  there  was  no  defence ;  he  was  so  entirely  of  that  opin- 
ion that  he  submitted  to  a  verdict.]  If  a  dangei-ous  bridge  fall  in,  it 
would  be  no  answer  to  an  action  for  negligence  against  the  person  who 
put  it  up  that  ninety-nine  persons  had  previously  passed  over  it,  if  it  ga\  e 
way  with  the  hundredth.  In  Martin  v.  Great  Northern  Railioay  Com- 
jMny,^  the  plaintiff,  in  running  along  the  platform  of  the  railway  to  get 
into  the  train,  fell  over  a  switch-handle  ;  it*was  held  that  there  was  evi- 
dence of  negligence  on  the  part  of  the  defendants.  The  plaintiff  there 
was  on  a  part  of  the  platform  where  he  ought  not  to  have  gone.  [Bram- 
well, B.  — That  case  will  not  help  this  plaintiff,  because  there  was  evi- 
dence that  there  was  not  light  enough  to  enable  a  person  unacquainted 
with  the  premises  to  move  about  in  safety.  Watson,  B.  —  I  have 
always  thought  that  decision  wrong,  but  perhaps  it  may  be  supported 

1  16  0.  B.  179. 


OBSTRUCTED  RAILWAY  PLATFORMS.  7l» 

English  Court  of  Exchequer. 

on  that  giound.]  In  Southcote  v,  Stanley,^  the  distinction  between  : 
visitor  and  a  person  invited  as  a  custonaer  into  a  shop,  or  a  passenger 
to  a  raihva}'  station,  was  adverted  to;  but  it  was  said  that  a  person  in 
the  house  of  another,  either  as  a  visitor  or  on  business,  has  a  right  that 
the  owner  of  the  house  shall  take  reasonable  care  to  protect  him  froni 
injury  ;  for  instance,  that  he  shall  not  allow  a  trap-door  to  be  opcMt 
through  which  the  visitor  may  fall.  The  public  in  general  know  that 
the  platform  is  above  the  rails ;  therefore  they  would  be  on  their  guaid 
against  falling  off  the  platform.  The  real  question  is  whether  the  prop- 
erty of  the  defendants  was  so  arranged  as  to  be  likely  to  produce  dan 
ger  to  a  person  situated  as  the  plaintiff  was.  [Bkamwell,  B. — In  a 
case  in  which  I  was  counsel,  the  plaintiff  came  to  a  shop  to  measure  a 
picture  for  a  frame,  and  followed  the  defendant  over  a  counter.  He 
dropped  through  a  sky-light.  There  was  a  verdict  for  the  plaintiff,  and 
a  rule  to  enter  a  nonsuit  was  refused.  The  difficulty  here  is  that  the 
company  could  not  have  reasonabl}'  anticipated  the  sort  of  accident 
which  happened.  The  weighing-machine  had  been  in  the  same  situation 
for  years  without  causing  any  accident  to  an}'  one.]  That  was  a  ques* 
tion  for  the  jury.  They  referred  also  to  Barnes  v.  Ward,^  and  Toomey 
V.  London^  Brighton,  and  South  Coast  Raihvay  Company.^ 

Ballantine,  Seijt.,  and  Holland  appeared  in  support  of  the  rule,  but 
were  not  called  on. 

Martin,  B.  —The  rule  must  be  absolute.  We  are  all  of  the  opinion 
that  there  was  no  evidence  of  negUgence  to  go  to  the  jury.  The  railway 
company  had  a  station  which  they  had  used  for  a  long  time.  They  had 
placed  on  the  platform  a  weighing-machine  for  the  purpose  of  weighing 
luggage  carried  by  the  trains.  It  was  a  large  machine  which  any  one 
might  see.  The  plaintiff,  on  Christmas  Da}'  of  last  year,  went  to  the 
place  where  it  was,  and  fell  over  it.  There  is  an  averment  in  the  decla- 
ration that  he  was  lawfully  there ;  but  the  accident  happened  either 
from  his  being  pressed  upon  by  other  people,  or  by  his  own  misfortune. 
There  is  no  evidence  of  any  negligence  on  the  part  of  the  company. 
No  doubt  if  there  had  been  an  open  place  on  the  platform  through 
which  any  one  might  have  fallen  without  perceiving  it,  that  would  have 
been  negligence  on  the  part  of  the  company.  Here,  however,  the  plat- 
'form  was  in  the  same  condition  in  which  it  had  been  for  five  years. 
The  accident  was  one  of  those  misfortunes  which  will  occasionally 
occur,  and  of  which  people  must  bear  the  consequences.  If  the  acci- 
dent had  occurred  in  a  timber-yard,  or  in  any  other  place  than  in  the 

»  1  Hurl.  &  N.  247.  a  9  0.  B.  392.  »ZC.B.  (N.  S.)  146,  ante,  p.  72. 


^0  DUTY    AS    TO    STATIOKS    AND    APPROACHES. 

Cornman  v.  Eastern  Couuties  Railway  Company. 

station  of  a  railway  company,  no  one  would  have  thought  of  bringing 
an  action. 

Bhamwell,  B.  —  I  have  felt  considerable  doubt  whether  the  rule 
should  be  made  absolute,  not  from  any  want  of  inclination  to  take  care 
that  railway  companies  should  be  fairly  treated,  but  because  I  think 
that  all  the  ingredients  to  make  out  a  case  of  negligence  against  the 
company  exist  except  that  proof  is  wanting  that  the  mischief  which 
happened  was  one  which  could  have  been  foreseen.  In  such  a  case,  it  is 
always  a  question  whether  the  mischief  could  have  been  reasonably 
foreseen.  Nothing  is  so  easy  as  to  be  wise  after  the  event.  But  here 
no  witness  stated  that  he  would  have  known  that  the  position  of  the 
weighing-machine  was  likely  to  cause  danger.  I  adopt  the  rule  stated 
by  Williams,  J.,  in  Toomey  v.  London,  Brighton,  and  South  Coast 
Railway  Comjmny:  "  It  is  not  enough  to  say  that  there  was  some  evi- 
dence ;  a  scintilla  of  evidence,  or  a  mere  surmise  that  there  may  have 
been  negligence  on  the  part  of  the  defendants,  clearly  would  not  justify 
the  judge  in  leaving  the  case  to  the  jury ;  there  must  be  evidence  on 
which  they  might  reasonably  and  properly  conclude  that  there  was  neg- 
ligence." Here  the  evidence  was  that  the  company  might  reasonablj' 
have  anticipated  that  no  mischief  could  occur,  since  no  mischief  had 
resulted  from  keeping  the  machine  in  the  position  in  which  it  stood  for 
so  long  a  period. 

Watson,  B.  —  It  is  necessary  for  a  railway  company  to  have  a  weigh- 
ing-machine. In  the  present  case,  this  machine  was  close  up  to  the 
side  of  the  railwa}',  quite  out  of  the  course  of  the  transit  of  passengers 
from  the  carriages  to  the  outlet  from  the  station.  It  may  be  that  on 
this  particular  occasion,  in  consequence  of  the  great  number  of  pas- 
sengers, the  plaintiff  was  driven  against  the  machine ;  if  so,  the  cause 
of  the  accident  was  the  pressure  of  the  crowd.  If  there  was  a  pitfall  in 
the  direct  road,  or  close  to  the  road,  the  cases  cited  might  have  applied. 

Channell,  B. — I  agree  that  the  rule  must  be  made  absolute.  At 
the  conclusion  of  the  plaintiff's  case,  my  brother  Bcdlantine  objected 
that  there  was  no  evidence ;  I  was  of  that  opinion  ;  but  as  it  is  often  a 
most  difficult  question  whether  there  is  not  a  scintilla  of  evidence 
which  ought  to  go  to  the  jury,  I  refused  to  withdraw  it  from  their  con- 
sideration. Some  of  the  cases  put  in  the  argument  have  no  bearing  on 
the  question.  If  the  accident  had  happened  from  the  platform  being  so 
constructed  as  to  be  insufficient  to  carry  the  weight  of  the  persons  who 
might  come  in  great  numbei-s  on  a  particular  day,  that,  no  doubt,  would 
have  been  evidence  of  negligence  on  the  part  of  the  company. 

Mule  absolute. 


Justices. 


DEFECTIVE    RAILWAY    BRIDGE.  81 

English  Court  of  Common  Pleas. 

3.   THE   SAME   SUBJECT. 

LoNGMORE  V.  Great  Western  Kailway  Company.* 

English  Court  of  Common  Pleas,  1865. 

The  Right  Hon.  Sir  William  Erle,  Kt.,  Lord  Chief  Justice. 
Sir  Edward  Vaughan  Williams,  Kt., 

"    James  Shaw  Willes,  Kt., 

"    John  Barnard  Byles,  Kt., 

"    Henry  Singer  Keating,  Kt., 

*'    Montague  Edward  Smith,  Kt., 

Death  of  Passenger  from  Defective  Bridgre  at  Railway  Station.  — A  railway  com- 
pany, (or  the  more  convenient  access  of  passengers  between  tlie  two  platforms  of  a 
station,  erected  across  the  line  a  wooden  bridge,  which  the  jury  found  to  be  dangerous. 
It  was  held  that  the  company  were  liable  for  the  death  of  a  passenger  through  the 
faulty  construction  of  this  bridge,  although  there  was  a  safer  one  about  one  hundred 
yards  further  around,  which  the  deceased  might  have  used. 

This  was  an  action  brought  by  the  plaintiff  as  administratrix  of 
her  deceased  husband,  against  the  Great  Western  Railway  Com- 
pany, to  recover  compensation  for  his  loss,  which  was  alleged  to  have 
occurred  through  the  improper  construction  of  a  bridge  belonging  to 
the  defendants. 

The  cause  was  tried  before  Keating,  J.,  at  the  last  Spring  Assizes  at 
Stafford.  The  facts  proved  were  as  follows :  The  deceased,  who  was 
about  sixty  years  of  age,  whilst  on  his  way  to  the  booking-office  at  a 
small  station  on  the  defendants'  railway  between  Birmingham  and 
Wolverhampton,  in  crossing  a  wooden  bridge  erected  by  the  company 
for  the  convenience  of  passengers  wishing  to  go  from  one  side  to  the 
other,  fell  through  what  was  described  in  the  declaration  as  a  ''danger- 
ous aperture  "  on  to  the  platform  below,  and  was  killed.  At  the  place 
through  which  the  deceased  fell  there  was  a  descent  of  eight  or  ten 
steps,  between  which  and  the  hand-rail  at  the  side  was  an  opening  of 
seven  feet  three  inches  by  four  feet  two  inches  without  any  protection. 
Two  witnesses  called  on  the  part  of  the  plaintiff  stated  that  in  their 
opinion  the  bridge  was  extremely  dangerous. 

For  the  defendants,  it  was  proved  that  the  bridge  in  question  had 
been  erected  about  ten  years ;  that  it  was  a  clear  moonlight  night  when 
the  accident  happened  ;  that  the  steps  were  in  perfect  repair,  and  that, 
tliough  manj  thousand  persons   had  passed  over  the  bridge  (and  the 

♦  Koported,  19  C.  B.  (N.  s.)  183. 
6 


82  DUTY    AS    TO    STATIONS    AND    APPROACHES. 

Longmore  v.  Great  Western  Railway  Company. 

deceased  himself  many  times),  no  casualty  had  ever  before  happened 
there.  It  was  also  proved  that  there  was  another  bridge  over  which  the 
deceased  might  have  gone  if  so  minded,  but  which  was  about  one  hun- 
dred yards  further  around.  And  it  was  submitted  that  there  was  no  evi- 
dence to  go  to  the  jury  of  negligence  on  the  part  of  the  company ;  that 
the  company  were  not  bound  to  provide  a  bridge  more  than  ordinarily 
safe  ;  and  that  if  the  public  chose  to  avail  themselves  of  the  shortei' 
cut,  they  must  take  the  bridge  as  they  find  it. 

The  learned  judg6  left  it  to  the  jury  to  say  whether  or  not  the  com- 
pany had  been  guilty  of  negligence  in  providing  a  bridge  for  the  use  of 
the  public  that  was  not  reasonably  safe. 

The  jury  returned  a  verdict  for  the  plaintiff;  damages,  £500, 

Cooke,  Q,  C,  pursuant  to  leave  reserved  to  him,  in  Easter  Term  last 
obtained  a  rule  nisi  to  enter  a  nonsuit,  on  the  ground  that  there  was  no 
evidence  of  negligence  to  go  to  the  jury;  or  for  a  new  trial,  on  the 
ground  that  the  learned  judge  ought  to  have  directed  the  jury  that  the 
defendants  were  not  liable,  there  being  another  bridge  crossing  the 
railway,  and  that  the  deceased  used  the  wooden  bridge  at  his  own  risk. 
He  referred  to  Bolch  v.  Smith. ^ 

Hudcllest07i,  Q.  C,  and  Macnamara,  now  showed  cause.  — There  was 
abundant  evidence  of  negligence  to  go  to  the  jury,  and  (if  it  were  neces- 
sary so  to  contend)  to  warrant  the  verdict.  The  deceased  was  going  to 
the  booking-office  by  a  mode  of  access  provided  for  the  public  by  the 
defendants.  It  was  their  duty  to  see  that  it  was  safe.  Two  witnesses 
proved  that  it  was  dangerous;  and  the  result  justified  their  opinion. 
[WiLLES,  J.  — The  Privy  Council  in  one  case  held  tliat  the  occurrence 
of  an  accident  was  2)rimd  facie  evidence  of  negligence ;  "^  but  that  is 
inconsistent  with  some  other  authorities.]  There  was  no  pretence  for 
saying  that  the  deceased  by  his  own  carelessness  contributed  to  the 
accident ;  nor  did  the  fact  of  there  being  another  and  a  safer  bridge  a 
hundred  yards  off  absolve  the  company  from  the  duty  of  making  the 
bridge  in  question  safe.  It  may  be  that  if  a  way  be  dedicated  to  the 
public  with  a  dangerous  structure  on  it,  the  public  must  take  it  with  the 
danger.3  But  if  a  railway  company  for  their  own  convenience  choose 
to  construct  a  bridge  to  connect  the  two  platforms  of  a  station,  and 
invite  the  public  to  use  it,  they  are  responsible  if  it  turns  out  to  be 
unsafe.  It  is  to  be  remembered  that  this  bridge  is  to  be  used,  not 
by  the  active  and  robust  only,  but  also  by  children  and  by  the  old  and 
infirm.     In  the  case  referred  to  at  the  trial, ^  there  was  no  dut3\ 

»  7  Hurl.  &  N.  736.  s  See  Robbins  v.  Jones,  16  C.  B.  (N,  8) 

-  Great  Western  R.  Co.  v.  Braid,  and  the       221. 
same  v.  Fawcett,  1  Moo.  P.  0.  (N.  8.)  101.  •"  Bolch  v.  Smith,  sttpra. 


DEFECTIVE    RAILWAY    BRIDGE.  83 

English  Court  of  Common  Pleas. 

Cooke,  Q.  C,  and  H.  James,  in  support  of  the  rule.  — To  render  the 
company  liable,  thex-e  must  be  some  evidence  of  negligence  on  the  part 
of  their  servants,  —  some  failure  to  perform  a  legal  duty.      They  are 
not  responsible  for  an  extraordinary  and  unforeseen  accident  at  a  spot 
which  has  been  safely  traversed  for  years  by  thousands.     If  the  com- 
pany ought  to  have  known  that  the  want  of  an  additional  rail  made  this 
bridge  peculiarly  dangerous,  so  ought  the  deceased,  who  was  proved  to 
have  passed  over  it  many  times.     The  case  is  in  this  respect  very  like 
that  of  Toomey  v.  London,  Brighton,  and  South  Coast  Railway  Com- 
pany.^    On  the  platform  of  a  railway  station   there    were   two  doors 
in  close  proximity  to  each  other ;  the  one,  for  necessary  purposes,  had 
painted  over  it  the  words  "For  gentlemen,"  the  other  had  over  it  the 
words    "Lamp-room."     The   plaintiff,  having  occasion  to  go   to   the 
urinal,  inquired  of   a  stranger  where  he  should  find  it,  and,  having 
received  a  direction,  by  mistake  opened  the  door  of  the  "  lamp-room," 
and  fell  down  some  steps  and  was  injured.     In  an  action  against  the 
railway'  company,  it  was  held  that,  in  the  absence  of  evidence  that  the 
place  was  more  than  ordinarily  dangerous,  the  judge  was  justified  in 
nonsuiting  the  plaintiff,  on  the  ground  that  there  was  no  evidence  of 
negligence  on  the  part  of  the  company.     In  using  a  way  like  this,  some 
caution  is  necessary  on  the  part  of  the  public.     In  Bolch  v.  Smith,^  the 
workmen  in  a  government  dock-yard  were  permitted  to  use  certain 
water-closets  erected  for  their  accommodation,  and  for  that  purpose  to 
use  certain  paths  across  the  dock-yard.     The  defendant,  a  government 
contractor,  was  permitted  to  erect  in  the  dock-yard  certain  machinery 
for  the  purpose  of  his  work.     He  erected  across  a  path  which  led  to 
one  of  the  water-closets  a  revolving  shaft,  partly  covered  with  planks. 
The  plaintiff,  a  workman  in  the  dock-yard,  having  gone  along  this  path 
to  the  watei'-closet,  on  his  return  stumbled,  and,  on  putting  out  his 
hand  to  save  himself,  his  arm  was  caught  by  the  shaft  and  lacerated. 
There  was  another  path  along  which  he  might  have  gone,  but  the  one  he 
used  was  the  more  convenient.     It  was  held  that  the  defendant  was  not 
liable  for  the  injury,  since  he  was  under  no  obligation  to  fence  the  shaft, 
and  the  defect  in  the  fencing  was  apparent.    In  Cornman  v.  Eastern 
Counties  Railway  Company,"^  the  defendant,  a  railway  company,  had  on 
their  platform,  standing  against  a  pillar  which  passengers  passed  in  going 
to  and  coming  from  the  trains,  a  portable  weighing-machine,  which  was 
used  for  weighing  passengers'  luggage,  and  the  foot  of  which  projected 
about  six  inches  above  the  level  of  the  platform.     It  was  unfenced,  and 

1  3  C.  B   (N.  8.)  146,  ante,  p.  TO.  »  7  Hurl.  &  N.  736.  «  i  Hurl.  &  N.  781,  ante,  p.  76. 


b4  DUTY    AS    TO    STATIONS    AND    APPROACHES. 

Lougmore  v.  Great  Westeru  Railway  Company. 

had  stood  in  the  same  position,  without  any  accident  having  occurred 
to  persons  passing  it,  for  about  five  years.  The  plaintiff,  being  at  the 
station  on  Christmas  Day  inquiring  for  a  parcel,  was  driven  by  the 
crowd  against  the  machine,  caught  his  foot  in  it,  and  fell  over  it.  It 
was  held  that  there  was  no  evidence  of  negligence  on  the  part  of  the 
company  to  go  to  the  jury,  the  machine  being  in  a  situation  in  which  it 
might  have  been  seen,  and  the  accident  not  being  shown  to  be  one 
which  could  have  been  reasonably  anticipated.  Bramwell,  B.,  in 
delivering  judgment,  says:  "In  such  a  case,  it  is  always  a  question 
whether  the  mischief  could  have  been  reasonably  foreseen.  Nothing 
is  so  easy  as  to  be  wise  after  the  event.  But  here  no  witness  stated 
that  he  would  have  known  that  the  position  of  the  weighing-machine 
was  likely  to  cause  danger.  I  adopt  the  rule  stated  by  Williams,  J., 
in  Toomey  v.  London,  Brighton,  and  South  Coast  Railway  Company : 
'  It  is  not  enough  to  say  that  there  was  some  evidence.  A  scintilla  of 
evidence,  or  a  mex'e  surmise  that  there  may  have  been  negligence  on  the 
part  of  the  defendants,  clearly  would  not  justify  the  judge  in  leaving  the 
case  to  the  jury  ;  there  must  be  evidence  on  which  they  might  reasonably 
and  properly  conclude  that  there  was  negligence.'  Here,  the  evidence 
was  that  the  company  might  reasonably  have  anticipated  that  no  mischief 
could  occur,  since  no  mischief  had  resulted  from  keeping  the  machine 
in  the  position  in  which  it  stood  for  so  long  a  period."  Here,  the  bridge 
had  been  erected  ten  years,  and  no  accident  liad  happened  there.  In 
Marfellx.  South  Wales  Railway  Company,^  Erle,  C.  J.,  says:  "The 
undefined  latitude  of  meaning  in  which  the  word  '  negligence  '  has  been 
used  appears  to  me  to  have  introduced  the  evil  of  uncertain  law  to  a 
pernicious  extent ;  and  I  think  it  essential  to  ascertain  that  there  was  a 
legal  duty,  and  a  breach  thereof,  before  a  party  is  made  liable  by  reason 
of  negligence."  The  evidence  here  showed  that  the  accident  was  one 
of  an  extraordinary  and .  unforeseen  nature. 

Erle,  C.  J. — I  think  this  rule  should  be  discharged.  The  question 
seems  to  me  to  have  been  one  peculiarly  for  the  jury,  viz.,  whether  the 
defendants  exercised  reasonable  care  and  skill  in  the  construction  of 
this  bridge  which  passengers  going  by  their  railway  were  invited  to  use. 
The  evidence  given  on  the  part  of  the  plaintiff  was  that  it  was  not 
constructed  with  reasonable  skill;  and  I  think  the  judge  clearly  would 
not  have  been  justified  in  taking  upon  himself,  as  a  matter  of  law,  to 
determine  as  to  the  propriety  of  its  construction,  and  withdraw  that 
question  from  the  jury.     There  being,  then,  evidence  for  the  jury,  and 

1  8  O.  B.  (N.  8.)  525,  534. 


OBSTRUCTED    EUKESts    i'liUM    RAILWAY    TliAlN  85 

English  Court  of  Exchequer. 

it  being  within  their  province  to  decide  upon  it,  and  they  having  done 
so,  and  having  also  found  the  deceased  himself  did  nothing  to  con- 
tribute to  the  accident,  I  think  we  ought  not  to  disturb  their  verdict. 

WiLLES,  J.  — I  am  of  the  same  opinion. 

Btles,  J.  — I  also  am  of  opinion  that  this  rule  should  be  discharged. 
I  was  struck  at  first  by  the  observation  of  Mr.  James;  but  the  fact  is,  that 
the  defect  itself,  as  we  now  see,  is  not  obvious  to  any  one  who  looks  at 
the  bridge  ;  and  further  than  that,  the  danger  from  the  defect,  even  if  the 
defect  were  obvious,  would  not  be  apparent ;  and  that  being  so,  and  the 
bridge  being  a  nearer  mode  of  access  to  the  railway  from  the  house  from 
which  the  deceased  came,  he  was  invited  by  the  company  to  pass  over  the 
bridge,  which  had  a  defect  in  it  which  was  not  obvious,  and  the  danger 
from  which  was  not  apparent.  In  addition  to  that,  it  is  to  be  recol- 
lected that  the  jury  have  negatived  all  carelessness  on  the  part  of  the 
deceased.  The  simple  question  is,  Was  this  an  improper  structure? 
The  plaintiff's  witnesses  stated  that  it  was ;  and  they  stood  uncontra- 
dicted, and  their  judgment  is  sustained  by  the  event.  It  was  purely  a 
question  for  the  jury. 

Keating,  J.  — I  am  of  the  same  opinion.  No  doubt  the  jury  might, 
if  so  minded,  have  found  that  there  was  no  negligence  on  the  pait 
of  the  company.  And  it  certainly  seemed  to  me  that  there  was  a  very 
strong  case  for  the  company.  If  I  had  been  upon  the  jury,  I  do  not 
say  I  should  have  found  the  same  way,  though  I  do  not  at  all  mean  to 
intimate  an  opinion  that  they  should  not  have  found  as  they  did. 

Rule  discharged. 


4.  THE   SAME  SUBJECT. 

Nicholson  v.  Lancashire  and  Yorkshire  Eailway  Company.* 

In  the  English  Court  of  Exchequer,  1865. 

The  Right  Hon.  Sir  Frederick  Pollock,  Kt.,  Chief  Baron. 
Sir  Samuel  Martin,  Kt., 

"   George  William  Wilsiiere  Bramwell,  Kt., 

"  William  Fry  Channell,  Kt., 

"     GiLLERY   PiGOTT,  Kt., 


Barons. 


Egress   from   Railway   Train  obstructed.   Injuring   Passenger.  — The  plaintiff,  a 
passenger  by  the  defendants'  railway,  was  set  down  at  a  station  after  dark,  on  the 

•  Eeported,  3  Hurl.  &  Colt.  534. 


86  DUTY  AS  TO  STATIONS  AND  APPKOACHES. 

Nicholson  v.  Lancashire  and  Yorkshire  Railway  Company. 

side  of  the  line  opposite  to  the  station  and  place  of  egress.  The  train  was  detained 
more  than  ten  minutes  at  this  place,  and  from  its  length  blocked  up  the  ordinary  cross- 
ing to  the  station,  which  is  on  the  level.  Tlie  ticket- collector  stood  near  the  crossing 
with  a  light,  telling  the  passengers,  as  they  delivered  their  tickets,  to  "  pass  on." 
The  plaintitf  passed  down  the  train  to  cross  behind  it,  and  from  the  want  of  light 
stumbled  over  some  hampers  put  out  of  the  train,  and  was  injured.  The  practice  of 
pn  >engers  had  been  to  cross  behind  the  train,  when  long,  without  interference  from 
the  railway  company.  These  facts  were  held  to  be  evidence  for  the  jury  of  negligence 
on  the  part  of  the  company. 

The  declaration  stated  that  at  the  time  of  the  committing  of  the 
grievances  hereinafter  mentioned  the  defendants  were  carriers  of  pas- 
sengers for  hire  from  "Wakefield  to  Thornhill  Lees,  in  carriages  on  a 
railway,  and  used  a  certain  station  at  Thornhill  Lees  aforesaid  for  the 
use  and  accommodation  of  their  said  passengers  there,  and  the  said 
station  was  then  in  possession  and  under  the  management  of  the  defend- 
ants for  the  purposes  aforesaid.  Yet  the  defendants  negligently  man- 
aged the  said  station  and  carriages,  and  omitted  to  light  the  said  station 
in  a  proper  and  sufficient  manner  for  the  use  and  accommodation  of 
their  said  passengers  there,  and  to  provide  proper  and  sufficient  accom- 
modation for  their  said  passengers  to  depart  safely  from  the  said 
carriages  on  their  arrival  at  the  said  station ;  and  negligently  left 
hampers  in  the  way  of  their  said  passengers  departing  from  the  said 
carriages  at  the  said  station,  whereby  the  plaintiff,  having  been  received 
and  carried  by  the  defendants  as  a  passenger  in  the  said  carriages  on 
the  said  railway  from  Wakefield  aforesaid  to  Thornhill  Lees  aforesaid, 
and  being  in  the  act,  on  his  arrival  at  the  said  last  mentioned  place,  of 
departing  from  the  said  carriages  at  the  said  station,  fell  over  the  said 
hampers,  and  was  thrown  down,  etc. 

Plea,  not  guilty.     Issue  thereon. 

At  the  trial  before  Bi.ackburn,  J.,  at  the  West  Riding  of  Yorkshire 
Summer  Assizes,  1864,  the  following  facts  appeared:  Thornhill  Lees  is 
a  station  on  the  defendants'  line  of  railway,  the  buildings  of  the  station 
and  the  principal  platform  being  on  the  north  side  of  the  line.  On  the 
south  side  there  is  also  a  raised  platform  formed  out  of  the  embank- 
ment ;  but  to  enable  a  passenger  set  down  there  to  quit  the  line,  it  is 
necessary  that  he  should  cross  to  the  north  side.  The  west  end  of  the 
north  platform  is  opposite  the  east  end  of  the  south  platform,  and 
between  these  points  the  railway  company  provide  a  crossing  on  the 
level.  Trains  arriving  from  Wakefield  and  other  places  east  of  Thorn- 
hill Lees  deposit  their  passengers  at  the  south  platform.  The  plaintiff 
arrived  at  Thornhill  Lees  from  Wakefield  by  one  of  the  defendants' 
trains,  and  was  set  down  after  dark  on  the  south  platform.  The  train 
remained  there  for  ten  minutes  or  a  quarter  of  an  hour,  the  carriages  at 


OBSTRUCTED    EGRESS    FROM    RAILWAY    TRAIN.  87 

English  Court  of  Common  Pleas. 

the  back  of  the  train  meanwhile,  owing  to  its  length,  blocking  up  the 
crossing  to  the  north  platform,  and  extending  some  distance  behind  the 
crossing.  The  ticket-collector  stood  to  collect  the  tickets  at  the  east 
end  of  the  south  platform,  with  a  light,  telling  the  passengers,  as  they 
gave  up  their  tickets,  to  "pass  on."  The  plaintiff  gave  up  his  ticket, 
and  passed  down  the  train  with  the  intention  of  crossing  behind  it,  but 
in  the  darkness  stumbled  over  a  hamper  that  had  been  put  out  of  the 
train,  and  sustained  the  injuries  for  which  this  action  was  brought. 
Evidence  was  also  given  that  it  had  been  the  constant  practice  of  pas- 
sengers, when  the  ordinary  crossing  was  blocked  by  the  length  of  their 
train,  to  pass  down  and  cross  behind  it,  and  that  this  practice  had  never 
been  interfered  with  on  the  part  of  the  railway  company. 

Overend,  in  last  Michaelmas  Term,  obtained  a  rule  nisi  to  enter  a 
nonsuit,  upon  the  ground  that  there  was  no  evidence  for  the  jury  of 
the  defendants'  negligence ;  against  which  — 

Manisty  and  Kemplay  showed  cause,  contending  that  the  facts  above 
detailed  amounted  to  an  invitation  on  the  part  of  the  railway  company 
to  the  plaintiff  to  go  where  he  did  for  the  purpose  of  crossing  behind 
the  train,  and  that  under  these  circumstances  there  was  evidence  that 
the  mischief  was  caused  by  the  railroad  company's  negligence. 

Overend  and  Mmile,  in  support  of  the  rule,  contended  that  the  mere 
circumstance  that  the  railway  company  on  previous  occasions  had  not 
prevented  passengers  from  crossing  behind  the  train  was  no  evidence 
that  they  had  sanctioned  that  practice  ;  and  inasmuch  as  a  regular  way 
was  provided  by  the  railway  company  where  the  line  might  be  crossed, 
passengers  who  for  their  own  convenience  chose  to  substitute  another 
way  must  take  the  substituted  way  with  all  its  incidents.  They  cited 
Cornman  v.  Eastern  Counties  Bailway  Company,'^  and  Wilkinson  v, 
Fairrie^^  relying  on  the  latter  case  as  closely  resembling  the  present  case 
in  its  facts. 

Pollock,  C.  B.,  now  said.  —  This  was  a  case  tried  at  Leeds,  before 
my  brother  Blackburn,  when  the  jury  found  a  verdict  for  the  plaintiff, 
the  learned  judge  reserving  to  the  defendants  leave  to  move  to  enter  a 
nonsuit  if  the  court  should  think  there  was  no  evidence  of  the  defend- 
ants' negligence,  the  defendants  not  to  appeal  without  the  leave  of  the 
court. 

The  accident  appears  to  have  happened  as  follows :  When  the  train 
in  which  the  plaintiff  was  a  passenger  arrived  at  Thornhill  Lees,  the 
train,  owing  to  its  length,  blocked  up  that  part  of  the  line  where  the 

»  4  Hurl.  &  N.  781,  ante,  p.  76.  8  i  Hurl.  &  Colt.  633. 


88  DUTY    AS    TO    STATIONS    AND    APPROACHES. 

Crafter  v.  Metropolitan  Railway  Company. 

railway  company  provide  a  level  crossing  for  passengers  to  cross  the 
principal  platform  and  so  reach  the  place  of  egress  from  the  station.  In 
that  position  the  train  remained  for  ten  minirtes  or  a  quarter  of  an  hour. 
As  this  had  happened  before,  passengers  on  being  set  down  had 
acquired  the  habit  of  walking  along  the  line  and  crossing  behind  the 
train.  Evidence  was  given  that  on  this  occasion  when  the  passengers 
reached  the  crossing,  which  was  blocked  by  the  train,  their  tickets  were 
taken  and  they  were  told  by  the  ticket-collector  to  "go  on; "  and  cer- 
tainly there  was  no  way  of  going  on  except  by  going  along  the  train  and 
going  round  behind  it.  The  plaintiff  went  on,  and,  there  being  no 
light,  stumbled  over  a  hamper  which  had  been  put  out  of  the  train,  and 
sustained  considerable  injury.  Under  these  circumstances,  we  are  all 
of  opinion  that  there  was  evidence  of  negligence  for  the  jury. 

I  own  it  appears  to  me  to  be  some  evidence  of  negligence  if  for  ten 
minutes  or  a  quarter  of  an  hour  after  a  train  has  arrived  and  set  down 
its  passengers  there  is  an  obstacle  to  impede  those  passengers  from 
reaching  the  platform.  And  for  mischief  thence  arising,  and  not  attrib- 
utable to  the  plaintiff's  negligence,  I  think  the  defendants  are  respon- 
sible. The  court  all  think  the  facts  of  this  case  disclose  evidence  of 
negligence ;  consequently  the  rule  to  enter  a  nonsuit  must  be  discharged. 

Ilvle  discharged. 


5.  THE   SAME   SUBJECT. 

Ckatter  V.  Metropolitan  Railway  Company.* 
English  Court  of  Common  Pleas,  1866. 

The  Right  Hon.^Sir  William  Erle,  Kt.,  Lord  Chief  Justice. 
Sir  James  Shaw  Willes,  Kt., 

"    John  B.yrnard  Byles,  Kt., 

'*    Henry  Singer  Keating,  Kt., 

"    Montague  Edward  Smith,  Kt., 


Justices. 


Passengrer  injured  upon  Slippery  Staircase  at  Railway  Station.  — The  staircase 
leading  from  a  railway  station  to  a  highway  (being  otherwise  unobjectionable)  had  at 
the  edge  of  each  step  a  strip  of  brass,  which  originally  had  been  roughened,  but  which 
had  from  constant  use  become  worn  and  slippery.  The  staircase  was  about  six  leet 
wide,  and  had  a  wall  on  each  side,  but  no  hand-rail.  The  plaintiff  (a  passenger  by  the 
railway,  who  was  a  frequent  traveller  by  the  line),  in  ascending  the  station,  slipped 
and  fell  upon  the  stairs,  and  was  much  hurt.    In  an  action  charging  the  company  with 

*  Reported,  L.  R.  1  C.  P.  300. 


DEFECTIVE    RAILWAY    STATION. 


English  Court  of  Common  Pleas. 


negligence  in  not  providing  a  reasonably  safe  and  convenient  staircase,  two  witnesses 
for  the  plaintiff  stated  that  in  their  opinion  the  staircase  was  unsafe,  one  of  them  (a 
builder)  suggesting  that  brass  nosings  on  the  steps  was  improper,  and  that  lead  would 
have  been  better,  because  less  slippery,  and  that  there  should  have  been  a  hand-rail. 
This  was  held  to  be  no  evidence  of  negligence  to  go  to  the  jury. 

This  was  an  action  against  a  railway  company  for  alleged  negligence. 

The  second  count  stated  that  the  defendants  were  carriers  of  pas- 
sengers for  hire  on  their  railway,  and  used  a  certain  station  for  tlie 
reception  and  accommodation  of  the  passengers  thereon ;  that  the 
station  was  in  their  possession  and  under  their  management ;  and  that 
they  negligently  managed  the  said  station,  and  kept  the  staircases  and 
approaches  thereto  in  a  dangerous  and  slippery  state,  and  did  not 
provide  hand-rails  or  sufficient  accommodation  for  safe  access  to  the 
carriages ;  and  that  the  plaintiff,  having  been  received  by  them  as  a 
passenger,  fell  and  was  thrown  down  the  staircase  and  was  injured,  etc. 

Plea,  not  guilty. 

The  cause  was  tried  before  Erle,  C.  J.,  at  the  sittings  at  Westminster 
after  last  Michaelmas  Term,  when  the  following  facts  appeared  in 
evidence :  On  the  28th  of  July,  1864,  the  plaintiff,  who  was  a  passenger 
by  the  defendants'  railway  from  Farringdon  Street  to  King's  Cross, 
ascending  the  stairs  at  the  King's  Cross  station  to  get  to  the  highway, 
slipped  and  fell  and  was  considerably  injured.  The  cause  of  his  slip- 
ping was  that  a  strip  of  brass  which  was  placed  at  the  edge  of  each 
step  had  by  constant  traffic  been  worn  smooth.  Two  witnesses  who 
were  called  on  the  part  of  the  plaintiff,  one  of  whom  was  a  builder, 
stated  that  in  their  opinion  the  staircase  was  a  dangerous  one,  as  well  by 
reason  of  the  nosings  of  brass  as  from  the  absence  of  a  hand-rail.  No 
witnesses  were  called  on  behalf  of  the  defendants  to  contradict  this ; 
but  it  was  proved  that  about  forty-thi-ee  thousand  persons  had  passed 
up  the  staircase  in  question  during  each  month  since  the  station  had 
been  opened  in  1863,  and  that  no  accident  had  ever  happened  there. 
It  wns  also  proved  that  the  plaintiff  was  in  the  constant  habit  of  travel- 
ling by  the  line,  getting  out  at  the  same  station. 

It  was  contended  on  the  part  of  the  defendants  that  there  was  no 
evidence  to  go  to  the  jury  of  any  actionable  negligence  or  the  omission 
of  any  legal  duty  on  their  part. 

His  lordship  declined  to  nonsuit  the  plaintiff,  but  reserved  leave  to 

the  defendants  to  move ;  and  he  left  it  to  the  jury  to  say  whether  or  not 

the  staircase  afforded  reasonable  accommodation  to  the  public. 

The  jury  returned  a  verdict  for  the  plaintiff,  damages  £105. 

Hawkins,  Q.  C,  on  a  former  day  in  this  term,  obtained  a  rule  nisi  to 

enter  a  verdict  for  the  defendants  or  a  nonsuit,  on  the  grounds,  — firsty 


90  DUTY   AS    TO    STATIONS    AND    APPROACHES. 


Crafter  v.  Metropolitan  Railway  Company. 

that  there  was  no  proof  of  any  such  negligence  as  alleged ;  secondly, 
that  there  was  no  evidence  to  justify  the  finding  of  the  jury;  or  for  a 
new  trial,  on  the  ground  that  the  verdict  was  against  evidence. 

Huddleston,  Q.  C,  and  H.  James,  showed  cause.  — The  only  question 
is  whether  there  was  an}^  evidence  of  negligence  which  the  learned  judge 
was  warranted  in  leaving  to  the  jury  ;  if  there  was,  the  matter  is  disposed 
of  by  their  finding  that  the  company  had  not  provided  reasonably  suffi- 
cient accommodation  for  the  public.  Two  witnesses  were  called  on 
behalf  of  the  plaintiff,  one  of  whom  was  a  builder,  and  both  stated  that 
they  considered  the  staircase  in  question  to  be  a  dangerous  one.  The 
defendants  called  no  witnesses.  Under  these  circumstances,  it  can 
hardly  be  said  that  there  was  no  evidence  to  go  to  the  jury.  The  case 
very  closely  resembles  Longmore  v.  Great  Western  Railway  Company,^ 
where  the  jury  found  a  bridge  over  the  railway,  which  had  been 
erected  ten  years,  and  over  which  many  thousand  persons  had  passed 
safely,  to  be  a  dangerous  structure,  upon  the  opinion  of  two  witnesses. 
The  question  was  left  to  the  jury  there  in  almost  identically  the  same 
terms  as  here ;  and  the  court  held  that  it  was  peculiarly  a  matter  for 
the  jury,  and  refused  to  disturb  the  verdict. 

Hawkins,  Q.  C,  and  Horace  Lloyd,  in  support  of  the  rule.  — There 
clearly  was  no  evidence  of  negligence  to  warrant  the  conclusion  the 
jury  came  to.  The  stairs  in  question  were  ascending  stairs,  six  feet 
wide,  with  a  wall  on  each  side.  The  traffic  being  very  great,  it  was 
necessarj'  for  the  safety  of  the  public  that  the  stairs  should  be  as 
durable  as  possible.  The  front  part  of  the  surface  therefore  was  pro- 
tected with  brass,  which  is  not  an  unusual  thing  to  find  on  much-used 
staircases.  The  reason  why  the  defendants  called  no  witnesses  to 
prove  the  staircase  safe  was  that  they  thought  the  fact  of  so  many 
persons  having  used  it  without  accident  was  abundant  evidence  of  the 
absence  of  danger ;  and  the^'  had  no  reason  to  expect  that  any  one 
would  have  the  hardihood  to  swear  that  it  was  dangerous.  The  evi- 
dence to  charge  the  defendants  in  a  case  of  this  sort  must,  as  is 
observed  by  Williams,  J.,  in  Toomey  v.  London,  Brighton,  and  South 
Coast  Raihvay  Company,^  be  "evidence  upon  which  the  jury  might  rea- 
sonably and  properly  conclude  that  there  was  negligence."  Cornman  v. 
Eastern  Counties  Railway  Company^  is  also  a  strong  authoritj^  that  a  rail- 
way companj'  are  not  to  be  charged  with  negligence  unless  it  is  shown 
that  they  have  omitted  to  perform  some  duty. 

1  19  C.  B.  (N.  8.)  183,  ante,  p.  81.  ^  4  Hurl.  &  N.  781;  s.  c.  29  L.  J.  (Exch.)  94, 

«  3  O.  B.  (N.  8.)  146;  a.  c.  27  L.  J.  (C.  P.)  39,       ante,  p  76. 
tmte,  p.  72. 


DEFECTIVE    RAILWAY    STATION.  91 

English  Court  of  Common  Pleas. 

Erle,  C.  J.  — I  am  of  opinion  that  this  rule  should  be  made  absolute, 
because  I  think  there  was  no  evidence  to  go  to.  the  jury  of  any  action 
able  negligence  on  the  part  of  the  defendants.  There  is  a  manifest 
distinction  between  the  present  case  and  that  of  Longmore  v.  Great 
Western  Railway  Company.^  With  regard  to  the  nature  of  the  structure, 
it  was  an  ordinary  staircase  about  six  feet  wide,  with  a  wall  on  each 
side,  the  steps  being  of  ordinary  dimensions.  There  was  nothing 
peculiarly  dangerous  in  it,  like  the  staircase  in  Longmore' s  Case.  It 
was  said  that  brass  was  an  improper  thing  for  the  surface  of  the 
stairs,  and  that  lead  would  be  better  because  less  slippery;  but,  in 
my  judgment,  that  expression  of  opinion  on  the  part  of  the  wit- 
nesses affords  no  ground  for  holding  the  defendants  liable.  As  to  the 
absence  of  a  hand-rail,  I  see  nothing  in  the  nature  of  the  structure 
to  make  it  the  defendants'  duty  to  provide  one,  though  possibly  it 
might  be  occasionally  found  convenient,  —  as,  by  a  man  with  a  wooden 
leg,  or  a  very  infirm  person.  Besides,  from  the  width  of  the  stair- 
case, several  persons  must  necessarily  be  going  up  together,  and  all 
could  not  avail  themselves  of  the  hand-rail,  if  there.  Further,  the 
plaintiff  was  shown  to  have  been  in  the  habit  of  using  this  staircase  for 
about  eighteen  months,  and  many  thousand  persons  have  used  it  with- 
out any  accident  having  happened.  The  mere  circumstance  of  the 
want  of  a  hand-rail  and  the  use  of  brass  instead  of  lead,  does  not  afford 
a  ground  of  action. 

WiLLES,  J.  —  I  am  of  the  same  opinion.  It  was  incumbent  on  the 
plaintiff  to  give  reasonable  evidence  from  which  the  jury  would  be  war- 
ranted in  concluding  that  the  company  had  not  furnished  sufficient 
accommodation  for  access  to  and  from  the  station.  The  real  question 
was  whether  the  staircase  was  defective  and  dangerous  by  reason  of  the 
nosings  (as  the}'  were  called)  of  brass  and  the  absence  of  a  hand-rail. 
The  only  evidence  as  to  the  former  was  that  of  the  witness  (the  builder) 
who  said  that  lead  would  have  been  a  safer  material  for  the  purpose, 
because  less  slippery.  But  we  must  take  that  evidence  with  the  common 
experience  which  every  one  has.  We  all  know  that  brass  is  a  material 
which  is  commonly  used  for  the  nosing  of  stairs  in  public  offices,  steam- 
boats on  the  river,  and  other  places  of  much  resort.  It  is  to  be  observed 
also  that  the  plaintiff  himself  well  knew  the  condition  of  the  staircase 
in  question,  having  gone  up  it  daily  for  about  eighteen  months.  Taking 
all  the  circumstances  together,  this  seems  to  me  to  be  nothing  more 
than  an  attempt  to  dictate  to  the  company,  and  make  them  cease  to  use 

»  19  C.  B.  (N.  8.)  183,  ante,  p.  81. 


92  DUTY    AS    TO    STATIONS    AXD    Al'PROACHES. 

Crafter  v.  Metropolitan  Kailway  Company. 

a  particular  metal  on  their  staircases  which  is  commonly  used  for  the 
purpose  and  which  nobody  has  hitherto  complained  of.  I  think  there 
was  no  evidence  which  could  properly  be  left  to  the  jury  to  show  that 
the  company  had  been  guilty  of  any  negligence  in  the  construction 
or  maintenance  of  the  staircase.  I  also  think  the  case  is  very  distin- 
guishable from  that  of  Longmore  v.  Great  Western  Railway  Company. 
In  that  case  the  danger  arose  from  the  circumstance  of  a  rail  being 
placed  at  the  side  of  some  steps  on  the  bridge,  which  apparently 
afforded  protection  to  persons  using  the  bridge,  but  which  in  reality 
afforded  no  protection  whatever  in  the  event  of  an  accidental  slip  in 
ascending  or  descending;  thus  leaving  a  hole,  which  was  a  sort  of 
concealed  trap.  Here,  however,  there  was  nothing  improper  or  unusual 
in  the  construction  of  the  staircase  ;  nothing  to  cause  danger  to  a  person 
walking  with  ordinary  circumspection.  For  these  reasons,  I  think  the 
rule  should  be  made  absolute  to  enter  a  nonsuit.  That  part  of  the 
rule  which  seeks  for  a  new  trial  as  for  a  verdict  against  evidence  may 
be  reserved,  in  order  to  abide  any  ulterior  proceeding. 

Keating,  J. — I  have  felt  some  difficulty  in  seeing  how  this  case  is 
to  be  distinguished  from  Longmore  v.  Great  Western  Railway  Com- 
pany, and  I  confess  that  that  difficulty  is  not  quite  removed.  It  is, 
however,  only  a  question  of  degree.  My  lord  and  my  brother  Willes 
think  there  is  a  distinction,  and  I  do  not  wish  to  dissent  from  their  con- 
clusion. 

Montague  Smith,  J.  — I  agree  with  my  lord  and  my  brother  Welles 
that  a  nonsuit  should  be  entered.  The  line  must  be  drawn  in  these 
cases  between  suggestions  of  possible  precautions,  and  evidence  of 
actual  negligence  such  as  ought  reasonably  and  properly  to  be  left  to  a 
jury.  It  is  difficult  in  some  cases  to  determine  where  the  line  is  to  be 
drawn,  but  here  I  have  no  hesitation  in  saying  that  there  was  no  evi- 
dence of  negligence  which  my  lord  could  properly  leave  to  the  jury. 
There  was  nothing  unusual  in  the  construction  of  the  staircase.  The 
use  of  brass  for  protecting  the  edges  of  the  stairs,  and  the  absence  of  a 
hand-rail,  which  alone  were  relied  on  by  the  plaintiff,  are  by  no  means 
unusual  in  staircases  of  a  similar  description  where  the  traffic  is  great. 
They  were  obvious  to  every  one  using  the  stairs,  and  were  well  known  to 
ihe  plaintiff  himself.  The  plaintiff  has  no  right  to  complain  of  the 
absence  of  accommodation  of  an  unusual  kind.  The  mere  fact  of  the 
plaintiff  having  fallen  and  hurt  himself  is  not  sufficient  to  charge  the 
company  with  negligence.  Longmore  v.  Great  Western  Railway  Com- 
pany is  obviously  distinguishable.  There,  there  was  an  aperture  left 
at  the  side  of  the  stairs  of  the  bridge,  which  was  undoubtedly  dan- 


DEFECTIVE    RAILWAY    PLATFORM.  93 

Supreme  Court  of  Iowa. 

gerous ;  it  being  large  enough  to  admit  of  a  person  accidentally  slipping 
on  the  stairs  falling  through ;  and  it  was  not  an  obvious  danger.  As 
to  the  suggestion  of  the  witness  that  brass  nosings  were  improper,  and 
tliat  lead  would  be  more  proper,  that  was  a  mere  expression  of  opinion. 
Every  case  of  this  kind  must  be  decided  upon  its  own  particular  facts 
and  its  surrounding  cii'cumstances ;  and  the  court  is  in  an  especial  man- 
ner bound  to  see  that  the  evidence  submitted  to  the  jury  in  order  to 
establish  negligence  is  sufficient  and  proper  to  go  to  them.  I  am  clearly 
of  opinion  that  there  was  no  sufficient  or  proper  evidence  here,  and  that 
the  rule  to  enter  a  nonsuit  should  be  made  absolute. 

Bule  absolute. 


6.  the  same  subject. 

McDonald  v.  Chicago   and   North -Western  Railroad 

Company.* 

Supreme  Court  of  Iowa,  1868. 

Hon.  John  F.  Dillon,  Chief  Justice. 
"     Chester  C.  Cole,      "] 
*«     George  G.  Wright,   V  Judges. 
"     Joseph  M.  Beck,        J 

1.  Railroad  —  Duty  to  provide  Station  Accommodatioiis.  —  There  exists  a  common- 

law  duty  on  the  part  of  railway  companies  to  provide  reasonable  accommodations  at 
their  stations  for  passengers  who  are  invited  and  expected  to  travel  on  their  roads. 

2.  Rules   of    Company    as   to    entering   Cars.  — Railroad   companies    are   held   to  a 

strict  accountability  for  the  safety  of  passengers.  To  enable  them  to  properly  dis- 
charge this  duty,  they  have  power  to  make  reasonable  rules  and  regulations  respecting 
the  time,  mode,  and  place  of  entering  cars;  and  these,  when  known  to  the  passenger,  he 
is  bound  to  conform  to,  and  he  cannot  violate  them  by  pursuing  another  course  and 
hold  the  company  liable  for  damages  thus  occasioned,  though  the  jury  may  believe 
that  an  ordinarily  prudent  man  might  have  adopted  the  same  course. 

*.  Injury  from  Defective  Platform  — Liability  of  Company  as  Common  Carriers.— 

In  the  present  case,  which  was  an  action  by  a  husband  and  wife  against  a  rail- 
way company,  as  common  carriers,  to  recover  damages  for  injuries  to  the  wife,  caused 
by  defective  steps  to  a  platform  to  which  the  train  had  backed,  and  which  was 
not  the  usual  place  for  passengers  to  get  on  and  off  the  cars,  the  jui-y  should  have 
been  instructed  to  ascertain  from  the  evidence  whether  the  company  had  designated 
or  set  apart  the  platform  in  front  of  the  depot  as  the  place  where  it  required  all  pas- 
aengers  to  enter  the  cars ;  if  so,  and  this  was  known  to  the  plaintiffs,  and  they,  in 
disregard  of  such  requirement,  in  advance  of  time,  and  without  any  justification, 
sought  to  enter  the  cars  at  another  place,  and  in  so  doing  met  with  the  injury,  then 
the  company  would  not  be  liable  as  common  carriers.    But  if,  on  the  other  hand,  there 

•  Reported,  26  Iowa,  124. 


94  DUTY    AS    TO    STATIONS    AND    APPROACHES. 

McDonald  v.  Chicago  and  North-Western  Railroad  Company. 

was  no  such  rule  or  regulation  known  to  the  plaintiffs,  and  they  in  good  faith,  and 
using  reasonable  care,  were  seeking  to  find  and  enter  the  cars,  the  company  would 
be  liable,  as  the  plaintiffs  would  have  a  right  to  presume  that  the  platform  and  its 
approaches  were  in  a  safe  condition. 

4.  Same  Subject.  —  As  a  general  rule,  railroad  companies  are  bound  to  keep  in  a  safe 
condition  all  portions  of  their  platforms,  and  approaches  thereto,  to  which  the  public 
do  or  would  naturally  resort,  and  all  portions  of  their  station  grounds  reasonably  near 
to  the  platforms,  where  passengers,  or  those  who  have  purchased  tickets  with  a  view  to 
take  passage  on  their  cars,  would  naturally  or  ordinarily  be  likely  to  go. 

Appeal  from  Linn  District  Court. 

Liability  of  railroad  companies  for  safe  condition  of  platform  at 
stations,  etc. 

This  was  an  action  to  recover  damages  for  an  injury  received  by 
Mrs.  McDonald,  at  Cedar  Rapids,  on  the  evening  of  January  3,  1867. 

The  petition  avers  that  the  defendant  is  a  common  carrier  of  pas- 
sengers;  that  on  the  third  day  of  January,  1867,  at  defendant's  station 
in  Cedar  Rapids,  Mrs.  McDonald  (plaintiff)  purchased  a  ticket  entitling 
her  to  be  carried  from  Cedar  Rapids,  Iowa,  to  Fulton,  Illinois,  and  that 
"thereupon  it  became  and  was  the  duty  of  the  defendant  to  use  due 
and  proper  care  that  the  plaintiff  should  be  safely  placed  in  said  train, 
and  so  to  construct  and  keep  in  good  repair  the  platform  around  the 
said  depot,  and  the  steps  to  the  same,  that  plaintiff  could  safely  go 
from  the  platform  to  the  cars;  "  yet  the  defendant  neglected  its  duty 
in  this  behalf,  "  so  that  the  plaintiff,  in  going  from  the  platform  to  the 
cars,  fell  through  a  step  connected  therewith,  which  defendant  had 
negligently  left  in  an  unsafe  condition,  by  reason  of  which  fall  she 
broke  her  ankle-bone  and  was  otherwise  injured,"  etc. 

Answer:  1.  In  denial.  2-  That  the  injury  was  caused  by  the  plain- 
tiff's own  negligence. 

On  the  trial  it  appeare(f  in  evidence  that  the  plaintiffs  (husband  and 
wife)  had  been  on  a  visit  to  Cedar  Rapids,  and  being  desirous  of  going 
to  their  home  in  "Wisconsin,  procured  tickets  of  the  defendant,  at  its 
station  in  Cedar  Rapids,  and  waited  in  the  passenger-room  at  the  station 
until  the  arrival  of  the  train  on  which  they  expected  to  take  passage. 
The  train  arrived  at  6  :  20  p.  m.,  and  left  at  6  :  45  p.  m.  When  the  train 
arrived,  the  plaintiffs  went  to  take  their  seats  in  the  cars,  and  when  about 
to  step  upon  the  train  heard  the  announcement  of  "  twenty  minutes  for 
supper."  Mr.  McDonald  testified,  that  about  the  time  this  announce- 
ment was  made  "  the  train  started,  and  moved  back  beyond  the  plat- 
form, and  1  told  my  wife  we  had  better  go  back  into  the  room  till 
such  a  time  as  the  train  should  come  forward.  She  said  *■  no,'  she  would 
rather  sit  down  on  the  platform,  or  stand  up  there,  as  the  room  was  so 
full  of  tobacco-smoke  that  she  could  not  stand  it.     It  made  her  sick. 


DEFECTIVE    RAILWAY    PLATFOKM.  i5 


Supreme  Court  of  Iowa. 


I  proposed  to  her  that  we  should  go  back  to  the  cars  and  get  on,  as  it 
was  cold.  We  started,  and  walked  on  the  platform  toward  the  cars 
until  we  came  to  the  west  end  of  the  platform,  and  in  going  down  the 
steps,  one  of  them  being  loose  and  out  of  place  at  one  end,  it  gave 
way  and  came  up  between  my  legs,  and  threw  us  both  on  the  track, 
head  foremost,  down  under  the  train."  Her  right  leg  was  bioken,  the 
left  ankle  sprained,  and  she  was  otherwise  injured,  and  long  confined 
to  her  bed.     Mrs.  McDonald  testified  to  the  same  facts. 

The  evidence  showed  that  the  accident  happened  when  it  was  "dusk, 
or  getting  dark."  There  was  evidence  tending  to  show  care  in  descend- 
ing the  steps  where  the  accident  happened. 

Mrs.  McDonald  was  fifty-nine  years  old,  and  weighed  about  two  hun- 
dred pounds.  There  was  evidence  showing  that  the  passenger-depot, 
if  not  full,  was  crowded  with  foreign  emigrants,  who  were  smoking. 
The  plaintiff  (Mr.  McDonald)  testified  that  "it  was  thick  with  tobacco- 
smoke,  so  much  so  that  it  was  difficult  for  one  to  breathe ;  and  my  wife 
took  more  offence  at  it  than  I  did."  Mrs.  McDonald  testified  that  '*it 
was  so  smoky  that  it  made  me  sick,"  and  that  this  was  the  reason 
why  she  did  not  go  back  into  the  room,  but  went  west  along  the  plat- 
form to  get  aboard  of  the  cars.  The  [)laintiffs'  son  testified  "that  the 
depot  was  so  full  of  people  that  his  mother  could  not  get  a  seat,  and 
that  it  was  full  of  tobacco-smoke,  which  was  very  offensive  to  her." 

This  testimony  as  to  the  smoky  condition  of  the  room  was  allowed  to 
go  to  the  jury  against  the  defendant's  objection. 

The  defendant  produced  evidence  showing  that  the  steps  where 
plaintiffs  fell  were  about  three  hundred  feet  distant  from  the  door 
of  the  passenger  depot ;  and  that  the  usual  place  for  passengers  to 
get  on  and  off  the  cars  was  in  front  of  the  passenger-depot,  and  the 
platform  between  it  and  the  freight-depot.  Passengers  to  and  from 
the  Dubuque  and  South-Western  Railroad  depot  usually  pass  over  these 
steps.  It  was  also  shown  by  the  defendant  that  it  was  customary  when 
the  train  arrived,  as  in  this  instance,  from  the  west,  to  run  back  so  as  to 
bring  the  baggage  and  express  cars  to  a  point  opposite  the  freight-depot, 
for  the  purpose  of  discharging  and  receiving  baggage  and  express  matter. 
This  movement,  on  the  evening  on  which  the  accident  in  question  hap- 
pened, placed  the  passenger-coaches  west  of  the  west  end  of  the  platform, 
so  that  the  nearest  passenger-car  was  about  one  car-length  beyond  the 
steps  at  the  west  end  of  the  platform.  It  was  while  the  cars  were  thus 
^tanding  that  the  plaintiffs,  without  waiting  for  them  to  be  drawn  up  to 
the  platform  in  front  of  the  passenger-depot,  started  for  them,  walking 
the  whole  length  of  the  platform,  and  in  descending  the  steps  the  injury 


96  DUTY    AS    TO    STATIONS    AND    APPROACHES. 

McDonald  v.  Chicago  and  North-Western  Railroad  Company. 

for  which  this  action  is  brought  happened.  Defendant  also  produced 
evidence  to  the  effect  "that  there  was  plenty  of  room  to  get  on  and 
off  the  trains  from  the  platform ;  and  that  there  was  no  necessity  for 
any  one  to  go  down  these  steps  to  get  on.  Before  leaving,  trains 
always  draw  up  in  front  of  the  passenger-depot,  and  stop  to  take  on 
passengers.  The  accident  happened  fifteen  or  twenty  minutes  before 
the  leaving-time  of  the  train.  The  steps  are  not  intended  or  used  for 
passengers  to  get  on  the  trains. 

The  defendant  asked  the  court  to  give  the  following  instructions,  viz. : 

"  1.  If  the  jury  believe  from  the  evidence  that  the  defendant,  at  the 
time  of  the  alleged  injury  at  the  station  at  Cedar  Rapids,  was  provided 
with  a  safe  and  suitable  platform  in  front  of  and  adjacent  to  the  pas- 
senger-rooms of  said  station,  so  that  passengers  could  safely  and  con- 
veniently pass  from  said  room  to  the  trains,  and  that  passenger-trains 
stopped  at  said  platform  for  the  purpose  of  receiving  passengers,  and 
if  said  plaintiffs,  in  attempting  to  get  upon  said  train  by  a  different  and 
unusual  way,  and  at  a  different  and  unusual  place,  met  with  said  acci- 
dent, then  the  plaintiffs  are  not  entitled  to  recover  in  this  action. 

"2.  That  if  the  plaintiff  Margaret  McDonald  attempted  to  enter 
said  train  at  a  place  not  prepared  or  designed  by  the  defendant  for 
receiving  passengers  on  trains,  there  being  no  paramount  necessity  for 
so  doing,  and  in  making  such  attempt  she  received  the  said  injury,  then 
her  own  fault  contributed  to  the  same,  and  the  plaintiffs  cannot  recover. 

"3.  The  liability  of  the  defendant  as  a  common  carrier  did  not 
commence  as  to  the  plaintiffs  until  the  train  which  the}-  were  to  take 
was  drawn  up  to  the  usual  place  for  receiving  passengers,  unless  they 
were  directed  by  some  authorized  agent  of  defendant  to  go  upon  the 
train  at  another  and  different  place,  or  before  the  train  reached  the 
usual  place." 

*»*«*♦•• 

Each  of  these  was  refused,  and  the  defendant  excepted. 

The  court,  after  referring  to  the  issues  made  by  the  pleadings, 
charged  the  jury  as  follows:  — 

***♦**«♦ 

"  4.  The  principal  question  for  you  to  determine  is.  By  whose  fault 
or  negligence  did  the  accident  occur  ?  If  one  of  the  steps  was  loose 
and  not  nailed  down,  by  reason  of  which  the  accident  happened,  it  is 
Buch  a  want  of  care  as  would  render  the  defendant  liable,  unless  you 
find  that  the  accident  happened,  or  was  contributed  to,  b3'  the  want  of 
ordinary  care  and  prudence  on  the  part  of  the  plaintiff  Margaret 
McDonald. 


DEFECTIVE    RAILWAY    PLATFOKM.  97 


Supreme  Court  of  Iowa. 


"5.  £t  is  for  you  to  determine  from  tlie  evidence  whether  the  plaintiff 
Margaret  McDonald  used  ordinary  care  and  prudence  in  leaving  the 
depot  and  going  to  the  cars  by  the  way  and  at  the  time  she  did ;  and  by 
ordinary  care  is  meant  such  care  and  prudence  as  an  ordinarily  pru- 
dent person  would  exercise  under  like  circumstances. 

"6.  If  3'ou  find  that  an  ordinarily  prudent  person  would  not  have 
gone  down  the  steps  of  the  platform  where  the  accident  occurred,  but 
would  have  waited  until  the  passenger-cars  were  opposite  the  passenger- 
depot,  then  the  defendant  is  not  liable.  And  if  you  find  that  the  plain" 
tiffs  went  by  a  way  which  was  not  used  or  travelled  over  by  passengers 
to  enter  the  cars,  and  that  a  person  of  ordinary  prudence  would  not 
have  gone  by  that  way,  you  may  fairly  infer  that  there  was  a  want  of 
ordinary  care  on  her  part.  Passengers  must  exercise  ordinary  care  in 
approaching  and  entering  the  cars. 

"7.  If,  however,  you  find  that  the  defendant  backed  its  train  up  to 
the  place  where  it  stood  when  the  accident  happened ;  that  persons 
could  conveniently  and  safely  approach  the  train  where  it  then  stood 
but  for  the  defective  step,  and  there  was  no  rule  or  regulation  of  the 
company  prohibiting  persons  from  approaching  the  cars  by  that  way, 
and  that  an  ordinarily  prudent  person  would  have  approached  the  train 
by  that  way,  the  defendant  is  liable  if  the  accident  occurred  by  reason 
of  the  defective  step." 

The  defendant  excepted  to  this  charge. 

The  jury  returned  a  verdict  for  the  plaintiffs  for  $2,000.  A  motion 
for  a  new  trial  was  overruled,  and  judgment  was  entered  against  the 
defendant;   from  which  it  prosecutes  the  present  appeal. 

E.  S.  Bailey,  for  the  appellant ;  E.  Latham,  for  the  appellees. 

Dillon,  C.  J.,  delivered  the  opinion  of  the  court. — Appellant's  vari- 
ous grounds  for  a  reversal  of  the  judgment  we  notice  in  the  order  in 
which  they  are  presented  by  counsel.  [Unimportant  points  omitted,  and 
the  omission  indicated  by  asterisks.]         *         *         * 

2.  There  was  no  error  in  the  action  of  the  court  in  allowing  witnesses 
to  testify  as  to  the  condition  of  the  passenger-room  with  respect  to 
tobacco-smoke.  The  evidence  was  proper  as  part  of  the  transaction 
out  of  which  the  injury  arose,  and  as  sliowing  why  the  plaintiffs  did  not 
ri  main  in  the  passenger-room,  or  return  to  it.  The  effect  of  this  cir- 
cumstance upon  the  riglits  of  tlie  parties  was  not  stated  to  the  jury.  It 
would  not  justify  the  plaintiffs  in  violating  a  known  rule  of  the  com- 
puiy,  if  there  was  one,  as  to  the  particular  place  where  passengers  were 
required  to  enter  tlieir  cars. 

But  I  have  no  hesitation  in  saying  ihat,  without  any  statute  enacting 

7 


98  DUTY   AS    TO    STATIONS    AND    APl'ROACHES. 

McDonald  v.  Chicago  and  Nortb-Western  Railroad  Company. 

it,  there  is  a  common-law  duty  on  these  companies  to  provide  reason- 
able accommodations  at  stations  for  the  passengers  who  are  invited  and 
expected  to  travel  on  their  roads.  ^  If  the  station-room  is  full,  or  if  it 
is  intolerably  offensive  by  reason  of  tobacco-smoke,  so  that  a  passenger 
has  good  reason  for  not  remaining  there,  while  this  will  not  justify  him 
in  violating  reasonable  rules  and  regulations  of  the  company,  which  are 
known  to  him,  respecting  the  place,  mode,  and  time  of  entering  the  cars, 
it  will  justify  his  endeavor  to  enter  the  cars  at  as  early  a  period  as  pos- 
sible, especially  if  it  is  dark  and  cold  without,  if  in  so  doing  he  uses 
proper  care  and  violates  no  rule  or  regulation  of  the  compan}'  of  which 
he  has  actual  knowledge,  or  which,  as  a  reasonable  man,  he  would  be 
bound  to  presume  existed.  He  would  not,  of  course,  be  justified  by  the 
condition  of  the  passenger-room  in  rashly  endeavoring  to  board  a 
train  in  motion,  or  the  like ;  but  if  the  train  had  arrived,  was  on  the 
tiack,  the  car  doors  open,  and  if,  as  is  frequently  if  not  generally  the 
case,  passengers  are  allowed,  or  at  least  not  forbidden,  to  enter  the  cars 
before  they  are  drawn  up  in  front  of  the  station,  we  think  a  passenger 
may  reasonably  and  properly  make  the  attempt  to  reach  and  enter  the 
cars,  if  he  is  not  aware  of  any  rule  or  regulation  to  the  contrary ;  and 
if  he  receives  an  injury  in  so  doing  (he  using  proper  care),  from  the 
unsafe  and  dangerous  condition  of  the  platform  or  the  steps  in  a  place 
where  passengers  would  naturally  go,  the  company  are  liable  therefor. 

This  subject,  and  some  of  the  leading  and  recent  decisions  bearing 
upon  it,  will  be  alluded  to  in  considering  the  instructions  of  the  court 
to  the  jury.         *         *         * 

5.  It  is  next  insisted  that  the  court  erred  in  refusing  to  instruct  as 
prayed  by  the  defendant,  and  also  in  the  charge  of  its  own  to  the  jury. 
The  view  taken  by  the  court  below  will  appear  from  the  instructions 
refused  and  given,  which  are  set  out  in  the  statement  of  the  case  and 
need  not  be  here  repeated. 

B3'  recurring  to  the  court's  charge  in  chief,  it  will  be  seen  that  it 
made  the  defendant's  liability  turn  upon  the  question  whether  the  step 
which  caused  the  accident  was  loose.  The  jury  were  told  in  the  charge 
that,  if  one  of  the  steps  was  loose  and  not  nailed  down,  by  reason  of 
which  the  accident  happened,  the  defendant  is  liable  unless  the  plain- 
tiffs' own  want  of  care  contributed  to  the  injury;  and  such  want  of 
care  does  not  exist  if  the  jury  find  that  an  ordinarily  prudent  person 
would  have  gone  down  the  steps  of  the  platform,  and  would  not  have 
waited  until  the  passenger-cars  were  opposite  the  passenger-depot.  See 
paragraphs  4,  5,  6,  and  7  of  the  charge. 

1  Caterham  R.  Co.  v.  London  R.  Co  ,  87  Eng.  Com.  Law,  410. 


DEFECTIVE    RAILWAY    PLATFORM.  99 

Supreme  Court  of  Iowa. 

These  instructions  assume  and  necessarily  imply  that  the  plaintiffs 
liad  the  right  to  enter  the  cars  when  and  where  they  attempted  it,  if  an 
ordinarily  prudent  person  would  have  pursued  the  course  which  the 
plaintiffs  did ;  that  is,  if  such  persons  would  have  gone  down  the  steps, 
and  not  have  waited  for  the  cars  to  be  drawn  up  to  the  platform  opposite 
the  passenger-depot. 

The  law  on  this  subject  is  this:  Railroad  companies  are  held  to  a 
strict  rule  of  accountability  for  the  safety  of  passengers.  This  is  salu- 
tary and  right.  To  enable  them  properly  to  discharge  this  duty,  they 
have  the  power  to  make  reasonable  rules  and  regulations.  They  may 
make  such  rules  and  regulations  respecting  the  time,  mode,  and  place 
of  entering  cars.  These,  when  known  to  the  passenger,  whether  they 
have  ever  been  written  or  published,  or  are  posted  up  or  not,  he  is 
bound  to  conform  to ;  and  he  cannot  violate  them  and  pursue  another 
course,  and  hold  the  company  liable  for  damages  thus  occasioned,  and 
which  would  have  been  avoided  by  conforming  to  the  rules  and  regula- 
tions of  the  company,  even  though  the  jury  may  believe  that  an  ordi- 
narily prudent  person  would  or  might  have  adopted  the  same  course. 

A  railroad  company  has  a  right  to  require  all  passengers  about  to 
enter  their  cars  to  do  so  only  when  the  cars  are  brought  up  to  the 
platform  for  that  purpose.  We  cannot  say  that  it  is  a  rule  of  law  that 
the  mere  existence  of* a  platform  in  front  of  a  depot  is  necessarily 
notice  to  the  passenger  that  the  train  will  be  drawn  up  at  that  place  to 
receive  him,  and  that  the  company  require  that  he  shall  wait  and  enter 
the  cars  at  that  place,  and  is  prohibited  from  entering  them  elsewhere. 
In  many  places,  passengers  are  required  or  allowed  by  the  companies  to 
enter  trains  elsewhere  than  from  the  platform  in  front  of  the  passenger 
station  or  depot.  In  many  places,  also,  railroad  companies  fail  to  dis- 
charge a  duty  which  they  owe  to  the  travelling  public,  by  leaving  them, 
without  any  assistance,  to  find  out  as  best  they  can  where  the  train  is 
which  they  wish  to  take,  how  to  reach  and  when  and  where  to  enter  it. 
Few  persons  travelling  in  strange  places  and  on  strange  roads  but  have 
experienced  the  embarrassment  arising  from  the  failure  of  the  company 
to  have  sign-boards,  or  officers  or  agents  in  attendance,  to  give  infor- 
mation of  this  character.  1  A  company  may  require  trains  to  be  entered 
at  a  particular  place,  —  as,  for  instance,  in  front  of  the  passenger-depot. 
Often,  however,  there  is  no  such  requirement,  and  passengers  are 
allowed,  or  at  least  not  forbidden,  to  enter  elsewhere. 

Applying  these  general  principles  to  the  case  in  hand,  we  are  of 
opinion  that  the  instructions  asked  by  the  defendant  were  faulty  in  so 

'  See  observations  of  Maule,  J.,  to  the  juiy  in  Martin  v.  Railway  Co.,  81  Eug.  Com.  Law, 
186,  187;  8.  C.  16  C.  B.  179,  186. 


100  DUTY    AS    TO    STATIONS    AND    APPROACHES. 

McDonald  v.  Chicago  and  North-Western  Railroad  Company. 

far  as  they  assume,  as  a  matter  of  law,  that  it  is  the  duty  of  a  passen- 
ger, irrespective  of  any  knowledge  on  his  part  of  any  rule  or  regulation, 
to  wait,  before  entering  the  cars,  until  the  train  is  drawn  up  in  front  of 
the  passenger  depot  or  platform.  If  he  knew  that  it  was  to  be  thus 
drawn  up,  and  that  passengers  were  expected  and  required  to  wait  until 
this  should  be  done  before  entering  the  cars,  he  could  not,  with  such 
knowledge,  be  justified  in  seeking  to  enter  the  cars  in  an  unusual  place 
and  at  an  unusual  time,  and  hold  the  company  for  damages  thus  occa- 
sioned. Why?  Because  he  is  not  in  the  line  of  his  duty  and  in  the 
exercise  of  his  lawful  rights  at  the  time.  If  the  plaintiffs  attempted  to 
enter  the  cars  at  a  place  which  they  knew,  or  from  the  nature  of  the 
circumstances  surrounding  them  ought  to  have  known,  was  not  pre- 
pared or  designed  for  receiN'ing  passengers,  and  at  which  they  knew,  or 
from  the  circumstances  ought  to  have  known,  the  company  did  not 
allow  passengers  to  enter,  the  company  would  not  be  liable  as  common 
carriers  upon  their  contract,  —  however  it  might  be  if  they  had  not 
been  declared  against  in  this  capacity,  — for  an  injury  happening  in  the 
prosecution  of  such  an  attempt.  Why?  The  answer  is,  that,  in  making 
such  an  attempt,  the  plaintiffs  would  not  be  in  the  line  of  their  dut}',  or 
in  the  exercise  of  any  right  conferred  upon  them  by  their  contract  with 
the  company. 

Applying  the  general  principles  before  expressed  to  the  charge  of  the 
court,  and  it  is  obvious  that  the  minds  of  the  jury  were  not  directed  to 
the  proper  grounds  on  which  the  defendant's  liabilit}'  or  non-liability 
would  depend.  The  jury  should  have  been  directed  to  ascertain  from 
the  evidence  whether  the  railroad  company  had  designated  or  set  apart 
the  platform  as  the  place  where  it  required  all  passengers  to  enter  the 
cars.  If  so,  and  this  was  known  to  the  plaintiffs,  and  they,  in  disre- 
gard of  such  requirement,  and  in  advance  of  time,  and  without  justifica- 
tion for  so  doing,  sought  to  enter  the  cars  at  another  place,  and  in 
so  doing  the  wife  met  with  the  injury  for  which  she  sues,  the  com- 
pany is  not  liable  in  this  action  as  common  carriers ;  and  this  is  the 
capacity  in  which  it  is  sued.  If,  on  the  other  hand,  there  was  no  rule 
or  regulation  known  to  the  plaintiffs  requiring  them  to  enter  at  the  plat- 
form, and  they,  in  good  faith,  and  using  reasonable  care,  were  seeking 
to  find  and  enter  the  cars,  the  defendant  would  be  liable  for  an  injury 
caused  b}-  the  defective  platform,  or  steps  leading  to  it ;  since  the  plain- 
tiffs —  it  being  dark,  or  nearly  so  —  would  have  a  right  to  presume  that 
the  platform  and  its  approaches  were  in  a  safe  condition. 

We  will  not  undertake  to  la}'  down  any  rule  applicable  to  the  ever 
varied  circumstances  of  all  cases  which  may  arise.  The  gist  of  such 
an  action  as  the  present,  if  no  known  rule  or  regulation  of  the  coin-« 


DEFECTIVE    RAILWAY    STATION.  101 

Supreme  Court  of  Ohio. 

pany,  reasonable  in  its  character,  has  been  violated,  is  negligence ;  and 
what  constitutes  negligence  so  as  to  give  an  action,  it  is  impossible  to 
define  in  a  rule  which  shall  comprehend  all  cases. 

The  recent  adjudications  in  the  cases  below  cited  have  been  carefully 
examined,  and  they  warrant  us  in  laying  down  the  general  principles 
before  expressed.  Upon  reason,  that  is,  enlightened  common  sense, 
applied  to  the  relation  which  railway  companies  sustain  to  the  public,  and 
applied  to  the  nature  of  man  and  the  mode  in  which  the  business  of 
carrying  passengers  is  practically  and  usually  transacted,  and  upon  the 
authority  of  decided  cases,  we  are  justified  in  laying  down  the  following 
general  rule  as  to  the  duty  of  such  companies,  to  wit:  that  they  arc 
bound  to  keep  in  a  safe  condition  all  portions  of  their  platforms,  and 
approaches  thereto,  to  which  the  public  do  or  would  naturally  resort, 
and  all  portions  of  their  station-grounds  reasonably  near  to  the  plat- 
forms, where  passengers,  or  those  who  have  purchased  tickets  with  a  view 
to  take  passage  on  their  cars,  would  naturally  or  ordinarily  be  likely  to  go.  ^ 

For  the  error  before  mentioned  in  the  instructions  of  the  court,  the 
judgment  is  reversed,  and  the  cause  remanded  for  a  new  trial  in  accord- 
ance with  the  rules  and  principles  of  law  herein  expressed. 


7.  the  same  subject. 

Pittsburgh,  Fort   Wayne,  and   Chicago  Eailway   Company 

V.  Brigham.* 

Supreme  Court  of  Ohio,  1876. 

Hon.  John  Welch,  Chief  Justice. 
"     William  White, 
*'     George  Rex, 

"       W.  J.  GiLMORE, 

"     George  W.  McIlvaine, 


Judges. 


Railway  Station— House  blown  down  by  a  Storm.— A  railroad  company  is  not 
liable  for  injuries  occasioned  by  its  buildings  or  structures  being  blown  down  by 

•  Reported,  29  Ohio  St.  374. 

'  Burgess  ».  Railway  Co.  (unfenced  hole  in  platform;  Crafter  r.  Railway  Co.,  12  Jur. 
in  station-ground  near  depot  building),  95  (N.  S.)  272;  s.  c.  L.  R.  1  C.  P.  300  (18GG) ; 
Eng.  Com.  Law,  923  (1858) ;  Martin  v.  Rail-  Longmore  v.  Railway  Co.,  19  C.  B.  (n.  s.) 
way  Co.  (defective  light  in  station  grounds,  183;  8.  c.  115  Eng.  Com.  Law,  183  (1805) ;  Saw- 
where  passengers  would  naturally  go),  81  yer  v.  Railway  Co.,  27  Vt.  377;  Murch  v. 
Eng.  Com.  Law,  179  (1855) ;  Cornman  v.  Kail-  Railroad  Co.,  29  N.  H.  9,  39,  40,  remarks  of 
way  Co.,  4  Hurl.  &  N.  781  (1859) ;  remarks  of  Bell,  J. ;  Frost  v.  Railroad  Co.,  10  Allen,  387 
Martin,  B.,  and  Watson,  B.,  as  to  open  place  (1805). 


102  DUTY    AS    TO    STATIONS    AND    APPKOACHES. 

Pittsburgh,  Fort  Wayne,  and  Chicago  Railway  Company  v.  Brigham. 

storms,  where  it  has  used  that  care  and  skill  in  their  structure  and  maintenance  which 
men  of  ordinary  prudence  and  skill  usually  employ;  and  it  is  error  in  such  cases  to 
charge  the  jury  that  the  company  is  "  bound  to  guard  against  all  storms  which  can 
reasonably  be  anticipated." 

Error  to  the  District  Court  of  Stark  Count}'. 

On  the  5th  of  December,  1870,  a  violent  storm  blew  down  part  of  the 
roof  of  the  Massillon  station-house  belonging  to  the  Pittsburgh,  Fort 
AVayne,  and  Chicago  Railway  Company,  and  Brigham  was  seriously 
injured  by  the  falling  materials.  At  the  time  of  the  occurrence  the 
Pennsj'lvania  Railroad  Company  was  operating  the  road  and  using  the 
building,  as  lessee  under  the  first-named  company.  Under  the  statute 
which  makes  the  lessor  company  equally  liable  with  the  lessee  for  injuries 
occasioned  in  using  and  operating  the  road,  Brigham  brought  his 
action  against  both  companies,  charging  the  lessor  company  with  negli- 
gence in  not  constructing  and  securing  the  roof  of  the  building  in  a 
proper  and  substantial  manner,  and  the  lessee  company  with  negligence 
in  maintaining  and  using  it  in  its  insecure  condition.  The  negligence 
was  denied  by  both  companies,  and  the  cause  was  tried  to  a  jury,  who 
returned  a  verdict  for  the  plaintiff.  A  motion  for  a  new  trial,  on  the 
ground  that  the  verdict  was  against  the  law  and  the  evidence,  was  over- 
ruled by  the  court,  and  judgment  was  entered  upon  the  verdict.  This 
judgment  was  subsequently  affirmed  in  the  District  Court,  and  the  plain- 
tiff in  error  now  seeks  to  reverse  the  judgments  of  both  courts. 

A  bill  of  exceptions  embodying  all  the  testimonj'  forms  part  of  the 
record.  From  this  it  appears  that  the  roof  in  question  had  stood 
eighteen  years  at  the  time  of  its  fall,  and  there  was  a  conflict  of  testi- 
mony as  to  whether  it  was  constructed  on  a  proper  plan  and  properly 
fastened  for  the  purpose  of  resisting  storms,  —  some  eight  or  ten  experts 
testifying  in  the  affirmative,  and  some  four  or  five  in  the  negative. 
There  was  also  a  conflict  of  testimony  as  to  the  severity  of  the  storm, 
as  compared  with  other  storms  which  had  previously  occurred  in  the 
locality. 

At  the  close  of  the  testimony  the  defendants  requested  the  court  to 
instruct  the  jury  that  if  the  roof  of  the  station-house,  at  the  time  of 
the  accident,  was  of  sufficient  construction  and  strength  to  withstand 
the  ordinary  and  common  storms  of  the  locality,  the  defendants  were 
not  liable ;  that  the  defendants  were  not  bound  to  foresee  and  provide 
against  extraordinary  storms ;  and  that  they  were  not  liable  unless  they 
had  failed  to  use  that  care  which  prudent  men  ordinarily  employ  in  such 
matters. 

Tliese  instructions  the  court  refused  to  give  as  requested,  and  instead 
thereof  gave  the  following :  — 

"  The  defendants  were  guilty  of  negligence  if  they  failed,  in  construct- 


DEFECTIVE    RAILWAY    STATIONS.  103 

Supreme  Court  of  Ohio. 

ing  or  maintaining  said  station-house,  to  use  that  degree  of  care  jvhich  a 
man  of  ordinary  prudence  is  accustomed  to  employ,  in  constructing  or 
maintaining  a  building  for  his  own  use  for  the  same  or  like  purposes,  to 
guard  against  danger  from  storms  of  wind  which  might  reasonably  have 
been  anticipated.  If  they  used  that  care,  they  were  not  negligent,  and 
cannot  be  held  liable  although  they  are  corporations. 

"And  further,  you  must  find  that  the  storm  which  caused  the  injury 
was  not  unprecedented  in  that  locality,  but  was  of  such  character  that 
it  might  reasonably  have  been  expected  to  occur  at  that  place. 

"  The  defendants  were  bound  to  provide  against  storms  which  could 
reasonabl}^  have  been  anticipated,  though  likely  to  occur  but  rarely. 

"  But  defendants  were  not  bound  to  provide  against  a  storm  of  wind 
80  extraordinary  in  power  that  no  experience  could  have  anticipated  its 
occurrence.  And  if  the  storm  in  question  was  of  this  character,  the 
plaintiff  cannot  recover." 

This  instruction  of  the  court,  it  is  now  claimed,  was  erroneous. 
There  are  also  various  other  grounds  of  error  alleged,  but  it  is  not 
necessary  to  state  them  in  this  report. 

J.  T.  Brooks^  for  plaintiff  in  error ;  W.  A.  Lynch,  for  defendant  in 
error. 

Welch,  C.  J.  —  In  the  first  paragraph  of  the  court's  instruction  we 
think  the  law  of  the  case  is  correctly  stated.  If  the  defendants,  in  the 
construction  and  maintenance  of  the  building,  used  that  degree  of  care 
which  men  of  ordinary  prudence  are  accustomed  to  employ  in  like  busi- 
ness, they  were  not  liable.  Had  the  court  stopped  with  the  proposition, 
there  clearly  would  have  been  no  error  in  the  charge.  But  the  court 
went  further,  and  told  the  jury  that  the  defendants  were  bound  to 
provide  against  all  storms  which  could  reasonably  have  been  antic- 
ipated^ and  by  plain  implication  told  them  that  the  defendants  were 
bound  to  provide  against  all  storms  that  were  not  '•'■  nnprecedented," 
or  that  were  of  a  kind  that  had  ever  happened  within  the  range  of 
human  '•'■  experience."  Taken  by  itself,  this  latter  part  of  the  charge 
is  clearly  erroneous  and  in  conflict  with  the  rule  as  first  and,  as  we 
think,  correctly  laid  down  by  the  court.  The  whole  charge,  taken 
together,  to  say  the  least,  was  calculated  to  mislead  the  jury.  Two 
rules,  apparently  in  conflict  with  each  other,  were  laid  down  for  their 
guidance,  and  it  is  impossible  to  know  which  they  followed.  The 
general  custom  of  prudent  persons  in  such  cases,  and  not  the  absolute 
requirements  of  the  occasion,  is  the  true  standard  by  which  the  defend- 
ants should  be  tried.  Tliey  were  only  bound  to  come  up  to  the  fair 
average  of  careful  and  prudent  men.     There  are  other  assignments  of 


104  DUTY    AS    TO    STATIONS    AND    APPROACHES. 


Notes. 


error  made  in  the  case,  but  we  only  deem  it  necessary  to  say  of  them 
that  we  do  not  deem  them  maintainable. 

Judgment  reversed  and  cause  remanded. 


NOTES. 

§  1.  The  Extent  ol  this  Duty.  —  The  duty  of  the  carrier  in  this  particular  is 
nowhere  better  expressed  than  in  the  comprehensive  rule  laid  down  by  Dillon, 
C.  J.,  in  McDonald  v.  Chicago  and  North- Western  Bailroad  Company,^  viz.,  that 
carriers  are  bound  to  keep  in  a  safe  condition  all  portions  of  their  platforms,  and 
approaches  thereto,  to  which  the  public  do  or  would  naturally  resort,  and  all  por- 
tions of  their  station-grounds,  reasonably  near  to  the  platforms,  where  passengers, 
or  those  who  have  purchased  tickets  with  a  view  to  take  passage  on  their  cars, 
would  naturally  or  ordinarily  be  likely  to  go.^  The  carrier's  liability  in  respect 
of  the  condition  of  his  premises  is  neither  greater  nor  less  than  that  of  any  per- 
son to  another  who  by  invitation  or  inducement,  express  or  implied,  has  come 
upon  his  premises  for  the  purpose  of  transacting  business.  A  duty  of  protection 
is  owed  to  such  persons  by  the  carrier,  but  it  is  needless  to  remark  that  this  does 
not  amount  to  a  warranty  of  the  safe  condition  of  the  premises ;  ^  neither  is  the 
carrier  held  bound  to  bestow  upon  their  condition  that  extraordinary  degree  of 
vigilance  which  the  law,  from  motives  of  the  soundest  policy,  imposes  upon 
him  in  regard  to  the  carriage  of  his  passengers.  The  passenger  while  in  actual 
progress  upon  his  journey  is  exposed  to  countless  hazards,  gives  himself  wholly 
in  charge  of  the  carrier ;  and  in  view  of  the  circumstances  of  the  case,  the  law 
requires  of  the  carrier  the  exercise  of  the  greatest  possible  vigilance  for  the 
benefit  of  the  passenger,  and  holds  him  responsible  for  the  slightest  negligence.* 
But  a  rule  properly  ceases  with  the  reason  for  it;  therefore,  as  a  passenger's 
entrance  to  the  carrier's  station  is  characterized  by  none  of  the  hazards  incident 

1  26  Iowa,  125,  ante,  p.  93.  capacity  he   was   engaged  upon  the   roof. 

2  This  case  was  retried  and  a  second  ap-  Blackburn,  J.,  stated  that  the  burden  of  prov- 
peal  taken,  but  the  correctness  of  the  former  ing  the  man  on  the  roof  to  be  a  servant  of 
opinion  was  not  questioned.  See  29  Iowa,  the  company  was  on  the  plaintiff,  and  that 
170, 175.  he  was  not  to  be  presumed  to  be  so ;  and 

3  Welfare  v.  London  etc.  R.  Co.,  L.  R.  4  Q.  further,  "  in  this  case  no  duty  is  cast  on  the 
B.  693;  s.  c.  38  L.  J.  (Q.  B.)  2-11;  17  Week.  railway  company  to  insure  that  no  plank 
Rep.  1065;  20  L.  T.  (N.  s.)  743.  In  this  case  shall  fall.  Their  duty  is  to  take  reasonable 
the  plaintiff,  who  had  come  to  the  defend-  care  to  keep  their  premises  in  such  a  state  as 
ants'  railroad  station  for  the  purpose  of  tak-  that  those  whom  they  invite  to  come  there 
ing  passage  on  one  of  their  trains,  was  shall  not  be  unduly  exposed  to  dangei-." 
injured  by  the  fall  of  a  plank  and  a  roll  of  -i  Phila.  etc.  R.  Co.  v.  Derby,  14  How.  486, 
/.inc  through  the  roof  upon  him  as  he  stood  ante,  p.  31 ;  Str.  New  World  v.  King,  16  How. 
inspecting  the  comjjany's  time-table.  At  iGd,  post,  p.  175;  Indianapolis  etc.  R.  Co.  v. 
the  time  of  the  accident  the  plaintiff  saw  Horst,  93  U.  S.  291;  Fuller  v.  Naugatuck 
through  the  hole  in  the  roof  above  him  the  R.  Co.,  21  Conn.  557.  See  the  next  chap- 
legs  of   a  man  appear.    No  evidence  was  ter. 

offered  as  to  who  the  man  was,  or  in  what 


EXTENT    OF    THIS    DUTY.  105 


To  whom  it  is  owed. 

to  the  journey  itself,  the  rigor  of  the  rule  above  announced  is  justly  relaxed,  in 
that  at  such  a  time  and  place  the  carrier  is  bound  to  exercise  only  a  reasonable 
degree  of  care  for  the  protection  of  his  patrons.' 

Thus,  the  fact  that  the  edges  of  the  steps  of  a  staircase  at  a  station  were 
tipped  with  brass,  which  had  been  worn  smooth  by  use,  and  that  the  staircase  had 
a  wall  on  each  side  without  any  hand-rail,  was  held  no  evidence  of  negligence, 
although  some  metal  might  have  been  used  for  this  purpose  which  would  not 
wear  quite  so  smooth ;  or,  as  Erle,  C.  J.,  said,  a  hand-rail  "  might  be  occasionally 
found  convenient,  — as,  by  a  man  with  a  wooden  leg,  or  a  very  infirm  person."  ^ 
And  so  it  was  no  evidence  of  negligence  that  a  railroad  company  allowed  a  weigh- 
ing-machine to  stand  upon  its  platform,  quite  out  of  the  course  of  travel,  for  the 
purpose  of  weighing  baggage,  over  which  the  plaintiff  was  pressed  and  injured 
by  the  crush  of  a  large  crowd  upon  a  holiday.^  A  railway  company  was  held 
not  responsible  for  injury  to  an  illiterate  person  who  in  the  night-time,  in 
search  of  the  water-closet,  passed  by  the  door  having  a  light  over  it  and  the 
words  "For  gentlemen,"  and,  opening  a  door  having  over  it  the  sign  "Lamp- 
room,"  but  no  light  above  it,  fell  down  some  steps  which  led  downwards  immedi- 
ately from  the  threshold.*  The  carrier  is  not  liable  for  injuries  occasioned  by 
its  buildings  or  structures  being  blown  down  by  storms,  wher^  it  has  used  that 
care  and  skill  in  their  structure  and  maintenance  which  men  of  ordinary  pru- 
dence and  skill  usually  employ.^ 

In  another  case,  the  plaintiff  was  bitten  by  a  stray  dog  at  a  railway  station, 
while  waiting  for  a  train.  It  was  proved  that  early  in  the  evening  the  dog 
snapped  at  and  tore  the  dress  of  another  woman  on  the  platform ;  that  an  hour 
and  a  half  aftei'wards  he  attacked  a  cat  in  the  signal-box,  near  the  station,  where 
he  was  kicked  out  by  the  porter,  who  saw  no  more  of  him.  Ten  minutes  later 
the  dog  made  his  appearance  on  the  platform,  where  he  bit  the  plaintiff.  It  was 
held  that  there  was  no  evidence  to  warrant  a  jury  in  finding  that  the  company  had 
been  guilty  of  any  negligence  in  keeping  the  station  reasonably  safe  for  passtmgers.* 

§  2.  To  whom  this  Duty  is  owed.  —  Although  it  is  sometimes  said  that  the 
depot-grounds  and  passenger-houses  of  a  railroad  company  are  quasi-puhlic,  by 
reason  of  the  general  use  to  which  they  are  appropriated,'  yet  persons  resorting 
there  for  their  own  convenience,  or  for  the  transaction  of  business  in  no  way  con- 
nected with  the  railroad  company,  are  where  they  have  no  legal  right  to  be,  and 

1  Welfare  r.  London  etc.  R.  Co.,  L.  R.  4  Q.  P.  300,  ante,  p.  88.  Compare  Crocheren  v. 
B.  693;  Pittsburgh  etc.  R.  Co.  v.  Brigham,  29  North  Shore  etc.  Ferry  Co.,  1  Thump.  &  U. 
Ohio  St.  374,nn<e,  p.  101;  Inrlianaetc.  R.  Co.  ■».  446;  Davis  v.  London  etc.  R.  Co.,  2  Fost.  & 
Hudelson,  13  Ind.  325;  Chicago  etc.  R.  Co.  v.  Fin.  688. 

Wilson,  63    111.    167;    Cornman    v.    Eastern  »  Cornman  v.  Eastern  Counties  R.  Co.,  4 

Counties    R.    Co.,    4    Hurl.   &   N.    781 ;  s.  c.  Hurl.  &  N.  781,  ante,  p.  76. 

29  L.  J.  (Exch.)  94,   ante,  p.  76;  Crafter  v.  *  Toomcy  v.  London  etc.  R.  Co.,  3  C.  B. 

Metropolitan  R.  Co.,  L.  R.  1  C.  P.  300;  s.  c.  1  (N.  S.)  146,  ante,  p.  72. 

Harr.  &  R.  164;  12  Jur.   (N.  S.)  272;  35  L.  J.  *  Pittsburgh  etc.  R.  Co.  ?;.  Brigham,  29  Ohio 

(C.  P.)  132;  14  Week.  Rep.  344,  ante,  p.  88;  St.  374,  ante,  p.  101. 

Toomey  v.  London  etc.  R.  Co.,  3  C.  B.  (n.  s.)  «  Smith  v.  Gt.  East.  R.  Co.,  L.  R.  2  C.  P.  4. 

146,  ante,  p.  72;  Rigg  v.  Manchester  etc.  R.  '  Illinois  etc.  R.  Co.  v.  Hammer,  72  111.  347. 

Co.,  12  Jur.  (N.  8.)  525  Contra,  however,  Illinois  etc.  R.  Co.  v.  God- 

2  Crafter  v.  Metropolitan  R.  Co.,  L.  R.  1  C.  frey,  71  111.  500. 


106  DUTY    AS    TO    STATIONS    AND    APPROACHES. 


Notes. 


therefore  entitled  to  hold  the  company  responsible  only  for  wanton  or  wilful 
injury.!  Thus,  persons  using  the  station  by  mere  permission  and  sufferance,  — 
as,  those  taking  refuge  from  a  storm,  —  cannot  hold  the  company  responsible  for 
injuries  received  by  the  station-house  being  partially  blown  down,  although  ordi- 
nary care  was  not  used  in  its  construction.''  Similarly,  a  crowd  having  gathered 
at  a  railway  station  to  witness  a  passing  parade,  the  company  was  held  not  liable 
for  injury  to  one  of  this  number  by  the  breaking  down  of  the  platform,  even 
though  the  floor  was  not  in  a  proper  state  of  repair  for  its  ordinary  use.' 

Persons,  however,  having  duties  to  perform  incidental  to  the  departure  and 
arrival  of  passengers,  and  all  persons  having  business  with  the  company,  such 
as  shippers  and  consignees  of  freight,  are  entitled  to  the  use  of  the  company's 
premises,  and  are  entitled  to  the  same  protection  as  passengers  from  injury  while 
thereon.*  A  hackman  caiTying  a  passenger  to  a  depot  for  transportation  has  been 
held  to  be  one  of  this  class,  and  he  therefore  recovered  damages  for  injuries 
received  by  stepping  into  a  cavity  in  the  platform  of  the  station,  such  defect 
being  occasioned  solely  by  the  want  of  ordinary  care  on  the  part  of  the  company.* 
So,  a  consignee  of  freight  who  chose  to  unload  the  same  himself,  and  in  so  doing 
stepped  upon  a  piece  of  defective  flagging,  in  consequence  of  which  he  was 
injured,  was  held  to  have  higher  rights  than  those  of  a  mere  licensee.*  One  who 
desires  to  take  passage  upon  the  cars  must  exercise  his  right  to  enter  and  remain 
in  the  station-house  in  conformity  with  the  reasonable  regulations  of  the  company 
as  to  his  conduct  while  there ;  he  cannot  exercise  it  until  a  reasonable  time  next 
prior  to  the  departure  of  the  train  on  which  he  intends  to  go.  What  is  such  a 
reasonable  time  depends  upon  the  circumstances  of  each  particular  case.^  He 
must  also  get  upon  the  train  in  a  proper  manner,  or  the  company  will  not  be 
responsible  for  injuries  received,  even  though  he  come  in  contact  with  an  obstruc- 
tion near  the  track  in  endeavoring  to  board  the  train  while  in  motion.* 

Where  two  railway  companies  had  adjoining  stations,  which  the  passengers  of 
each  used  indifferently,  one  of  these  companies  was  held  responsible  for  an 
injury  from  the  careless  operation  of  a  truck,  laden  with  baggage,  by  a  porter  of 
the  company  owning  the  premises,  to  a  person  who  was  neither  a  passenger  of 
theirs  nor  on  the  premises  of  the  company  on  any  business  in  which  they  were 
interested,  but  the  passenger  of  another  company.  But  this  was  on  the  prin- 
ciple of  respondeat  superior,  as  the  act  causing  the  injury  was  one  of  misfeasance 
done  by  a  servant  of  the  defendants  in  the  course  of  his  employment.* 


1  Illinois  etc.  R.  Co.  v.  Godfrey,  71  111.  500;  6  Tobin  v.  Portland  etc.  R.  Co.,  69  Me. 

Pittsburgh  etc.  R.  Co.  v.  Bingham,  29  Ohio  St.  183. 

364;  Gillis  v.  Penn.  R.  Co.,  59  Pa.  St.  129.  «  Holmes  v.  North-Eastern  R.  Co.,  supra. 

-  Pittsburgh  etc.  R.  Co.   v.  Bingham,  29  See  also  Wright  v.  London  etc.  R.  Co.,  L.  R. 

Ohio  St.  364.  10  Q.  B.  298;  s.  c.  affirmed  in  Court  of  Ap- 

3  Gillis  V.  Pennsylvania  R.  Co.,  59  Pa.  St.  peal,  1  Q.  B.  Div.  252. 

129.  7  Harris  v.  Stevens,  31  Vt.  79. 

*  Ibid.;  Tobin  v.  Portland  etc.  R.  Co.,  95  8  Phillips  v.  Rensselaer  etc.  R.  Co.,  49  N. 

Me.  183;  Holmes  «.  North-Eastern  R.  Co.,  L.  Y.  177;  Chicago  etc.  R.  Co.  v.  Scales  (Sup. 

R.  4  Exch.  254;  s.  c.  38  L.  J.  (Exch.)  161 ;  17  Ct.  111.  1879),  9  Cent.  L.  J.  167. 

Week.  Rep.  800;  20  L.  T.  (N.  S.)  616  (affirmed  »  Tebbutt  v.  Bristol  etc.  R.  Co.,  L.  R.  6  Q. 

in  the  Exchequer  Chamber,  L.R.  6  Exch.  123;  B.  73;  s  c.iOL.J.  (Q.  B.)  78;  32  L.  T.  (N.  8.) 

40  L.  J.  (Exch.)  121).  772. 


TO    WHOM    THIS    DUTY    IS    OWED.  107 


Illustrations  of  Neglect  of  it. 

§3.  Illustrations  of  Negligence  in  tliis  Particular.  —  As  before  stated,  at 
whatever  point  a  railway  company  is  accustomed  to  receive  and  discharge 
passengers,  they  are  bound  to  have  the  place  properly  constructed  and  in  a 
condition  adequate  for  this  purpose. ^  Thus,  if  the  waiting-room  of  a  station  is 
full,  or  intolerably  offensive  by  reason  of  tobacco-smoke,  it  will  justify  a  pas- 
senger in  endeavoring  to  enter  the  cars  at  as  early  a  period  as  possible ;  and  if  in 
so  doing  he  receives  an  injury  from  the  unsafe  and  dangerous  condition  of  the 
platform  or  steps,  in  a  place  where  passengers  would  naturally  go,  the  com- 
pany are  liable  therefor  if  the  passenger  used  proper  care  and  violated  no 
rule  or  regulation  of  the  company  of  which  he  had  actual  knowledge,  or 
which,  as  a  reasonable  man,  he  would  be  bound  to  presume  to  have  existed.^ 
The  platform  between  tracks,  designed  for  the  reception  and  delivery  of  passen- 
gers, should  be  of  sufficient  width,  —  such  that  persons  assembling  thereon  for 
the  purpose  of  taking  or  leaving  the  trains  may  do  so  in  safety.  A  platform  which 
leaves  standing-room  of  only  about  two  feet  in  the  clear  when  trains  stand  upon 
-each  track  a,longside,  does  not  meet  the  requirements  of  its  purpose.*  What- 
ever portion  of  the  station  is  designed  for  the  convenience  of  passengers,  though 
having  no  necessary  connection  with  the  taking  and  leaving  of  trains,  the  company 
will  be  under  the  same  duty  to  keep  in  proper  condition  of  repair.  Thus,  having 
provided  a  telegraph  office  at  one  of  its  stations,  for  the  use  of  its  patrons,  the 
company  will  be  responsible  to  one  of  its  passengers  who  is  injured  solely 
because  of  the  company's  negligence  in  failing  to  keep  in  proper  condition  the 
platform  erected  by  them  over  which  a  passenger,  in  alighting  from  the  cars,  must 
pass  to  reach  the  telegraph  office.*  A  railroad  company  is  not  bound  to  fence  its 
premises  about  a  station  to  prevent  passengers  from  taking  a  "  short  cut " 
across  them  at  night  for  the  purpose  of  reaching  the  train  sooner  than  by  the 
customary  way ;  *  but  if  the  company  hold  out  an  inducement  or  invitation  to 
its  patrons  to  do  so,  they  will  be  liable  for  injuries  received  on  account  of  the 
defective  condition  of  the  premises  so  traversed.®  The  fact  that  no  one,  without 
some  previous  knowledge,  can  be  expected  to  provide  against  the  contingency  of 
a  street  car,  with  the  railway  upon  which  it  stands,  coming  upon  him  by  a  side 
movement,  imposes  upon  the  company  moving  their  cars  from  one  track  to 
another,  in  this  unusual  manner,  a  degree  of  care  in  so  doing  proportionate  to 
the  dangers  arising  therefrom.^ 

•  McDonald  ». Chicago  etc.  R.  Co.,  ante,  p.  cases:  "They  should  omit  no  act,  the  omis- 

^;  Lisoomb   ».  New  Jersey  etc.  R.  Co.,  6  sion  of  which  would  endanger  the  limbs  or 

Lans.  75;  Hulbert  *■.  New  York  etc.  R.  Co.,  lives  of  tliose  who  seek  to  ride  upon  their 

40  N.  Y.  145;  Knight  v.  Portland  etc.  R.  Co.,  trains." 

56  Me.  2;J4 ;  Martin  v.  Great  Northern  R.  Co.,  -  McDonald  v.  Chicago  etc.  R.  Co.,  26  Iowa, 

16  C.  B.  179.    In  Chicago  etc.  R.  Co.  v.  Fill-  124,  aide,  p.  93. 

more,  57  111.  265,  tlie  plaintiff,  in  attempting  »  Chicago    etc.  R.   Co.  v.    Wilson,  63    HI. 

10    get    upon    the    defendants'    train,    fell  167. 

through  a  bridge  over  a  highway  sixteen  *  Clussman  v.  Long  Island  etc.  R.  Co.,  9 

feet    below.    The    bridge    was    under    the  Hun.  618. 

■control  of  the  defendants,  and  in  the  imme-  *  Burgess  r.  Great  Western  R.  Co.,  6  C.  B. 

(liate  vicinity  of    their  track.     The    bi-idge  (N.  8.)  923. 

happened  to  be  temporarily  uncovered  for  «  Longmore  v.  Great  Western  R.  Co.,  19 

repairs.    The  defendants  were  held  respon-  O.  B.  (N.  8.)  18.5. 

5ible  for  this  injury.    Said  the  court,  speak-  '  Gurdon  v.  Grand  Street  etc.   R.  Co.,  40 

ing  of  the  duty  of  railway  companies  in  such  Barb.  51H. 


108  DITY    AS    TO    STATIONS    AND    APPROACHES. 


Notes. 


It  is  the  duty  of  the  corporation  to  have  its  stations  open  and  lighted,  and  its 
servants  present,  for  the  accommodation  of  those  who  may  wish  to  leave  its 
trains  or  depart  by  the  same.'  Therefore,  to  leave  open  a  flight  of  stairs  at  the 
end  of  the  station-house,  by  which  a  person  may  descend  into  a  pitfall  when  the 
place  is  not  lighted,^  or  to  put  off  an  aged  woman  at  her  destination  in  the  night- 
time, at  a  station  neither  open  nor  lighted,  and  without  any  one  in  attendance  to 
give  her  necessary  directions,  whereby  she  was  injured  in  wandering  about  the 
depot,  although  not  by  reason  of  the  defective  construction  of  the  premises,^ 
will  constitute  negligence  in  this  particular. 

If,  in  the  ordinary  course  of  transportation,  it  is  necessary  for  a  passenger  to- 
leave  the  train  and  proceed  a  considerable  distance  over  the  company's  premises 
for  the  purpose  of  taking  another  train,  he  has  the  right  to  assume  that  the  way 
provided  for  the  purpose  may  be  used  with  safety  even  on  a  dark  night.*  In 
Hulhert  v.  New  York,  etc.  Bailroad  Company,^  the  plaintiff's  intestate,  having  been 
carried  beyond  his  destination  in  the  night-time,  was  instructed  by  the  conductor 
of  the  train  to  go  on  to  a  station  at  which  a  train  would  be  met  going  in  the 
opposite  direction,  on  which  he  might  return.  The  train  reached  this  station  at 
about  two  o'clock  in  the  morning,  and  stopped  at  a  water-house  about  two 
hundred  and  fifty  feet  west  of  the  station.  The  passenger  immediately  got 
out,  and  without  making  any  inquii'ies,  walked  between  the  tracks  with  the 
intention  of  taking  the  westward-bound  train  which  stood  at  a  water-tank  about 
two  hundred  feet  east  of  the  station.  There  were  no  lights  at  the  station-house 
which  he  passed,  and  none  upon  the  premises  except  upon  the  trains.  While 
passing  alongside  the  train  which  he  was  about  to  enter,  he  fell  into  an  excava- 
tion close  to  the  track,  which  had  formerly  been  used  as  a  cattle-guard,  and  was 
seriously  injured.  It  appeared  that  the  station-house  was  not  open  for  that 
train,  and  that  passengers  occasionally  got  on  board  of  it  at  the  water-tank  as 
this  passenger  was  endeavoring  to  do ;  but  there  was  a  conflict  of  testimony  as 
to  whether  the  train,  after  leaving  the  water-tank,  always  stopped  at  the  station- 
house  for  passengers.  It  was  held  that  it  was  a  question  for  the  jury  whether 
the  passenger  was  guilty  of  negligence  in  endeavoring  to  reach  the  train  as  he 
did,  without  making  inquiries  as  to  whether  either  train  would  stop  at  the  station ; 


1  Beard  v.  Connecticut  etc.  K.  Co.,  48  Vt.  at  a  point  where  there  was  no  station,  on 

101;  Patten  v.  Chicago  etc.  R.  Co.,  32  Wis.  account  of  the  wrecking  of  a  freight-train, 

524;  Hulbert  V.  New  York  etc.  R.  Co.,  40  N.  which  blockaded   the  track.    Between  the 

Y.  145 ;  Knight  v.  Portland  etc.  R.  Co.,  56  Me-  two  trains  was  a  ditch  about  three  feet  deep, 

234;  Nicholson  v.  Lancashire  etc.  B.  Co.,  3  which  had  to  be  crossed,  over  which  was 

Hurl.  &  Colt.  534,  ante,  p.  85 ;  Martin  v.  Great  placed  a  plank  for  the  use  of  passengers. 

Northern  R.    Co.,  16   C.  B.  179;    Osborn  v.  Afire  had  been  built  by  the  train-men,  not 

Union  Ferry  Co.,  53  Barb.  629.  very  far  from  the  crossing  of  the  ditch,  and 

-  Beard  v.  Connecticut  etc.  R.  Co.,  4S  Vt.  there  were    many   lanterns    in    the    hands 

101.  of  different  employees  scattered  about  the 

3  Patten  v.  Chicago  etc.  R.  Co.,  32  "Wis.  524.  vicinity,  but  the  attention  of  pas^^engers  was 

<  Hulbert  V.  New  York  etc.  R.  Co.,  40  N.  not  particularly  directed  to  the  ditch.    The 

Y.  145;  Knight  v.  Portland  etc.  R.  Co.,  56  Me.  plaintiff,  a  passenger,  in  endeavoring  to  go 

234.    Contra,  Falkiner  v.  Great  Southern  etc.  from  one  train  to  the  other,  fell   into  this 

R.  Co.,  Irish  Rep.  5  C.  L.  213.    In  Vicksburg  ditch  and  broke  his  leg,  for  which  injury  tlie 

etc.  R.  Co.  V.  Howe,  52  Miss.  202,  it  was  neces-  defendants  were  held  res]ionsible,  as  arising 

sary  to  transfer  the  passengers  on  a  dark  from  their  neglect  of  necessary  precautions, 
and  rainy  night  from  one  train  to  another,  '■>  Supra. 


ILLUSTKATIONS. 


109 


Injuries  to  Passengers  in  leaving  Train. 


And  furtlier,  that  under  the  circumstances  the  jurj'  were  authorized  to  find  the 
defendant  guilty  of  negligence  in  leaving  the  ground  in  so  dangerous  a  condi- 
tion, there  being  evidence  that  passengers  often  got  into  this  train  v^hile  standing 
At  the  Tvater-tanli  near  the  dangerous  place.^  So,  in  Nicholson  v.  Lancashire,  etc. 
Bailway  Company,'^  the  plaintiff,  a  passenger  by  the  defendant's  railway,  was 
set  do-vvn  after  dark  on  the  side  of  the  line  opposite  to  the  station  and  place  of 
egress.  The  train  was  detained  more  than  ten  minutes,  and  from  its  length 
blocked  up  the  ordinary  crossing  to  the  station,  which  was  on  the  level.  The 
ticket-collector  stood  near  the  crossing  with  a  light,  telling  the  passengers,  as 
they  delivered  their  tickets,  to  "pass  on."  The  plaintiff  passed  down  the  train 
to  cross  behind  it,  and,  on  account  of  the  place  being  unlighted,  fell  over  some 
baggage  which  had  been  put  off  the  train,  and  was  injured.  It  was  the  practice 
of  passengers  to  cross  behind  the  train  when  long,  without  interference  from 
the  servants  of  the  company.  These  facts  disclosed  evidence  for  the  jurj'  of 
negligence  on  the  part  of  the  company.^ 


1  See  also  Dillaye  v.  New  York  etc.  R.  Co., 
-56  Barb.  30,  .and  the  very  similar  case  of 
Martin  v.  Great  Northern  R.  Co.,  16  C.  B.  179, 
the  facts  of  which  were,  that  the  plaintiff 
presented  himself  at  the  station  just  as  the 
ti'ain  was  about  to  start.  He  desired  to  go 
oil  the  "  up  line."  The  station  was  so  con- 
structed that  passengers  wishing  to  go  to  a 
train  on  the  "up  line"  must  cross  the 
"  down  line,"  for  which  purpose  there  was  at 
the  end  of  the  platform  of  the  "  down  line  " 
a  crossing  at  right  angles  to  the  platform  on 
the  other  side.  AVhen  the  plaintiff  arrived 
at  the  station  he  was  told  that  he  was  in 
time,  but  received  no  directions  as  to  how 
the  train  was  to  be  reached.  Being  in  a 
hurry,  he  did  not  observe  the  crossing;  but 
seeing  the  red  lights  of  the  train  at  some 
little  distance  uji  the  line,  he  ran  straight  on 
from  the  end  of  the  platform,  and  came  in 
cfintact  with  a  switch -handle,  which  injured 
him.  There  was  contradictory  evidence  as 
to  the  sufficiency  of  the  light  at  the  station. 
It  was,  however,  conceded  that  there  was 
no  light  at  the  switch,  and  no  fence  or  railing 
to  prevent  persons  from  walking  down  an 
inclined  plane  at  the  end  of  the  station  and 
onward  to  the  point  where  the  injury  was 
received.  On  these  facts,  the  question  of 
plaintiff's  negligence  (the  defence  being 
that  the  accident  was  due  entirely  to  the 
plaintiff's  negligence)  was  held  to  be  prop- 
erly submitted  to  the  jury,  who  found  for  the 
plaintiff. 

The  rule  that  the  company  must  provide 
safe  and  convenient  means  of  entrance  to 
and  egress  from  their  cars,  obviously  has 
no  application  to  the  case  of  a  passenger  on 
the  caboose-car  of  a  freight-train.  Such 
passengers  must  be  held  to  assume  the  dis- 


comforts and  dangers  incidental  to  this 
mode  of  travel,  in  this  particular,  although 
the  company  are  responsible  for  negligence 
of  their  servants  in  the  transportation.  Pas- 
sengers on  freight-trains  ^re  liable  to  be 
taken  up  and  put  down  at  very  considerable 
distances  from  the  stations  and  at  various 
points;  therefore  it  would  be  unreasonable 
to  expect  the  company  to  keep  its  line  for  a 
half  a  mile  on  each  side  of  each  station 
upon  its  road  in  a  condition  as  safe  and  con- 
venient as  stations  ordinarily  are,  simply 
that  these  occasional  patrons  might  be  ac- 
commodated. Murch  V.  Concord  etc.  R.  Co., 
29  N.  H.  9,  42. 

2  3  Hurl.  &  Colt.  534,  ante,  p.  85. 

8  In  Knight  v.  Portland  etc.  R.  Co.,  56  Me. 
234,  the  plaintiff's  ticket  entitled  her  to  pas- 
sage over  the  defendants'  road  to  Portland, 
and  by  steamboat  from  Portland  to  Belfast. 
The  defendants'  depot  was  distant  from  the 
steamboat -landing  about  forty  i-ods.  The 
defendants  owned  the  wharf,  and  had  built 
their  track  upon  it  down  to  the  steamboat- 
landing.  Trains  were  formerly  run  upon  it 
for  the  accommodation  of  passengers,  but 
had  been  discontinued;  biiggage-cars  were, 
however,  still  run  as  before.  Passengers 
were  directed  to  use  the  wharf  as  a  passage- 
way to  the  steamboat,  and  they  did  so  use  it. 
The  piaintiflf  in  this  case,  though  directed  by 
none  of  the  officers  of  the  railroad  or  steam- 
boat, proceeded  in  company  with  other  pas- 
sengers from  the  depot  to  the  place  of  em- 
barkation, until  within  a  few  feet  of  the  edge 
of  the  wharf,  when  she  fell  into  a  hole  and 
sustained  injury,  for  which  the  defendants 
were  held  responsible.  Said  Appleton,  C.  J. : 
"The  train  arrives  in  the  evening.  Passen- 
gers from  the  cars  to  the  boat  pass  rapidly 


110  DUTY    AS    TO    STATIONS    AND    APPROACHES. 


Notes. 


It  is  culpable  negligence  on  the  part  of  a  railroad  company  to  allow  snow  and 
ice  to  accumulate  upon  the  platforms  of  their  stations.  They  should  be  on  the 
alert  during  cold  weather  to  see  whether  there  is  ice  upon  the  platform,  and  to 
remove  it,  or  make  it  safe  by  sanding  it  or  in  some  other  manner.' 

The  obligation  of  keeping  the  station  in  a  reasonably  safe  condition  imposes 
upon  the  servants  of  the  company  the  necessity  of  discharging  their  duties  in  a 
prudent  manner,  such  that  the  security  of  the  passenger  shall  not  be  jeopard- 
ized. Thus,  in  Jeffersonville,  etc.  Bailroad  Company  v.  Riley, '^  the  company  was 
held  responsible  for  the  act  of  a  brakeman  in  throwing  a  burning  stick  of  wood 
from  the  train,  which  struck  a  passenger  on  the  head  who  was  walking  upon 
the  platform.  In  Caswell  v.  Boston,  etc.  Railroad  Company,^  the  plaintiff,  while 
standing  in  a  proper  place  to  await  the  arrival  of  a  train,  was  placed  in  great 
danger  from  the  approach  of  a  train  in  an  unexpected  direction,  by  reason  of  the 
displacement  of  a  switch  through  culpable  negligence  of  servants  of  the  com- 
pany. She  became  alarmed,  and  in  running  away  to  escape  the  apprehended 
peril,  fell  and  was  injured.  A  verdict  against  the  company  was  sustained, 
although  the  course  which  the  plaintiff  took  in  running  off  brought  her  into 
greater  peril  from  the  approach  of  the  train,  and  although  the  immediate  cause 
of  her  fall  was  tripping  over  the  raU  of  the  track  on  which  she  was  running. 

over  the  intervenijig  distance.    The  wharf  there,'  or  '  You  must  go  across  the  railwax 

should  be  lighted.    The  servants  of  the  de-  there.'    Or,  if  they  do  not  have  a  man,  they 

fendant  corporation  should  be  in  readiness  might  have  a  board  placed  at  the  end  of  the 

to  point  out  the  way.    The  wharf  should  be  platform  with  '  To  the  train,'  in  large  letters, 

safe."    See  also  the  language  of  Maule,  J.,  painted  upon  it,  and  a  hand  upon  that  board 

in  his  charge  to  the  jury  in  Martin  v.  Great  pointing  in  the  direction  which  people  are  t'- 

Northern  R.  Co.,  16  C.  B.  179,  186:    "If  they  take." 

[the  company]  choose  to  allow  people  to  '  Weston  r.  New  York  etc.  R.  Co.,  10  Jone> 

cross  the  line  at  the  last  moment,  it  seems  &  Sp.  156;  Seymour  v.  Chicago  etc.  B.  Co.. 

to  me  they  should  have  a  person  to  point  out  3  Biss.  43;  Shepherd  v.  Midland  B.  Co.,  2i) 

to  passengers  who  are  in  a  hurry  the  right  Week.  Rep.  705. 
course  lor  them  to  take,  and  to  tell  them,  2  39  jnd.  568. 

'  Yen  must  turn  here,'  or  '  You  must  torn  ^  98  Mass.  194. 


CHAPTEB   Y. 

LIABILITY   OF  THE   CARRIER  FOR  NEGLIGENCE. 


Leading  Cases:  1.  Ingalls  v.  Bi7Zs.  —  Liability  of  carrier  for  injury  to  passen- 
ger from  defects  in  liis  veliicle  —  Contributory  negligence 
of  passenirer. 

2.  Hmdhmd  v.  Midland  Railway  Company.  — Liability  of  car- 
rier for  injury  to  passenger  from  defects  in  his  vehicle. 

8.  Hegeman  v.  Western  Eailroad  Corporation.  —  The  same 
subject. 

4.  Steamboat  New  World  v.  King.  — The  same  subject,  in  Its^ 
application  to  free  passengers. 

6.  Christie  v.  Griggs.  — Presumption  of  negligence  from  the 
happening  of  the  accident. 

6.  Stokes  V.  Saltonstall.  — The  same  subject  —  Contributory 

negligence  of  the  passenger. 

7.  Curtis  V.  Bochester  and  Syracuse  Eailroad  Company.  — Th 

same  subject. 

Notes:     I.  General  Doctrines. 

§  1.  Grounds  on  which  this  liability  rests. 

2.  Overruled  cases  holding  carriers  of  passengers  liable  as 

insurers. 

3.  Such  carriers  not  warrantors  of  their  vehicles  and  roads, 

but  liable  only  for  negligence. 

4.  Bound  to  use  extraordinary  care. 

(1.)  General  expressions  of  the  doctrine. 
(2.)  Expressions  in  railway  cases. 
(3.)  Expressions  in  stage-coach  cases. 
(4.)  Expressions  in  steamboat  cases. 

5.  Modified  expressions  of  the  rule  iu  American  cases. 

6.  The  modem  English  rule  of  reasonable  care. 

7.  American  expressions  of  this  rule. 

8.  Limitations  upon  the  rule  of  extraordinary  care. 

9.  Presumption  of  negligence  from  the  happening  of  the  acci- 

dent. 

n.  In  Failing  to  Provide  a  safe  Vehicle  and  Roadway. 
$  10.  Duty  to  adopt  latest  improvements. 

11.  Accidents  from  latent  defects  in  vehicles. 

12.  Defects  in  the  carrier's  roadway. 

13.  Negligence   of    manufacturer    or  contractor    Imputed    tO' 

carrier. 

14.  This  obligation  of  the  carrier,  how  affected  by  statute. 

(Ill) 


112  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 


Insalls  V.  Bills. 


Notes:     III.  Railway  Carriers. 

§  15.  Duties  of  railway  companies  in  general. 

16.  Duty  to  afford  a  reasonable  time  for  passengers  to  get  on 

and  off  trains. 

17.  Trains  overshooting  or  falling  short  of  the  platform  of 

the  station. 

18.  Invitation  to  alight,  express  or  implied. 

19.  Injuries  to  passengers  on  the  track. 

20.  Degree  of  care  required  in  transportation  of  passengers  on 

freight- trains. 

rv.  Stage  Proprietors. 

§  21.  Duties  of  stage  proprietors  —  The  law  as  laid  down  by  Mr. 
Justice  Story. 

22.  Duty  to  furnish  competent  drivers. 

23.  Care  and  vigilance  exacted  of  the  driver. 

24.  Overloading  the  vehicle. 


1.  LIABILITY  OF  CARRIER  FOR  INJURY  TO  PASSENGER  FROM  DE- 
FECTS IN  HIS  VEHICLE  —  CONTRIBUTORY  NEGLIGENCE  OF  PAS- 
SENGER. 

Ingalls  V.  Bills.* 
Supreme  Judicial  Co^irt  of  Massachusetts,  1845, 

Hon.  Lemuel  Shaw,  Chief  Justice. 
"     Samuel  S.  Wilde,      "] 
"     Charles  A.  Dewey,   \  Judges. 
"     Samuel  Hubbard,      J 

1.  measure  of  Liability.  —  Proprietors  of  coaches  who  carry  passengers  for  hire  are 
answerable  to  a  passenger  for  an  injury  which  happens  by  reason  of  any  defect  in  a 
coach,  which  might  have  been  discovered  by  the  most  careful  and  thorough  exami- 
nation, but  not  for  an  injury  which  happens  by  reason  of  a  hidden  defect  which  could 
not,  upon  such  examination,  have  been  discovered. 

■2.  Illustration  —  Breaking  of  Axle  through  Secret  Defect.  —  A  passenger  in  a  coach 
received  an  injuiy  solely  by  reason  of  the  breaking  of  one  of  the  iron  axletrees,  in 
which  there  was  a  very  small  flaw  entirely  surrounded  by  sound  iron  one-fourth  of 
an  inch  thick,  and  which  could  not  be  discovered  by  the  most  careful  examination 
externally.  Held,  that  the  proprietors  of  the  coach  were  not  answerable  for  the  injury 
thus  received. 

3.  Contributory  Negligence  of  the  Passenger.  —  If  a  passenger  in  a  coach,  by  reason 
of  a  peril  arising  from  an  accident  for  which  the  proprietors  thereof  are  lial)le,  is  in 
so  dangerous  a  situation  as  to  render  his  leaping  from  the  coach  an  act  of  reasonable 
precaution,  and  he  leaps  therefrom  and  thereby  breaks  a  limb,  the  proprietors  are 
answerable  to  him  in  damages,  though  he  miglit  safely  have  retained  his  seat.. 

*  Reported,  9  Mete.  1. 


LATENT    DEFECTS    IN    HIS    VEHICLE.  113 

Supreme  Judicial  Court  of  Massachusetts. 

Assumpsit  on  an  implied  promise  of  the  defendants,  as  coach  pro 
prietors  and  common  carriers  of  passengers,  to  convey  the  plaintiff 
safely  from  Boston  to  Cambridge. 

At  the  trial  in  the  Court  of  Common  Pleas,  before  "Williams,  C.  J., 
the  plaintiff  introduced  evidence  tending  to  prove  that,  on  the  23d  of 
September,  1841,  he  and  several  other  persons  took  outside  seats,  as 
passengers,  on  the  top  of  the  defendants'  coach,  to  be  conveyed  from 
Boston  to  Cambridge ;  that  on  the  way,  in  Court  Street  in  Boston, 
while  pi'oceeding  at  a  moderate  rate,  and  without  coming  in  contact 
■with  any  thing  or  meeting  any  obstruction,  the  hind  axle  tree  of  the 
coach  broke,  one  of  the  hind  wheels  came  off,  and  the  coach  settled 
down  on  one  side,  without  being  overset ;  that  the  plaintiff  and  some 
other  outside  passengers,  being  alarmed,  jumped  from  the  top  of  the 
coach  upon  the  pavement,  and  that  the  plaintiff's  left  arm  was  thereby 
badly  injured. 

The  defendants  introduced  evidence  tending  to  prove  that  they  had 
taken  all  possible  care  and  incurred  extraordinary  expense  in  order 
that  the  said  coach  should  be  of  the  best  materials  and  workmanship ; 
that  at  the  time  of  the  accident,  the  coach,  so  far  as  could  be  dis- 
covei'ed  from  the  most  careful  inspection  and  examination  externally, 
was  strong,  sound,  and  sufficient  for  the  journey ;  and  that  they  had 
uniformly  exercised  the  utmost  vigilance  and  care  to  preserve  and  keep 
the  same  in  a  safe  and  roadworth^'  condition.  But  the  evidence  furthei- 
tended  to  prove  that  there  was  an  internal  defect  or  flaw  in  the  iron  of 
the  axletree,  at  the  place  where  it  was  broken  as  aforesaid,  about  three- 
eighths  of  an  inch  in  length  and  wide  enough  to  insert  the  point  of'  a 
fine  needle  or  pin,  which  defect  or  flaw  appeared  to  have  arisen  from 
the  forging  of  the  iron,  and  which  might  have  been  the  cause  of  the 
said  breaking ;  that  the  said  defect  was  entirely  surrounded  by  sound 
iron  one-quarter  of  an  inch  thick ;  and  that  the  flaw  or  defect  could 
not  possibl}"  have  been  discovered  by  inspection  and  examination 
externally. 

Upon  this  evidence,  the  defendants  moved  the  court  to  instruct  the 
jury  that  it  was  the  dut}^  of  the  defendants  to  use  all  possible  care  in 
providing  a  good  coach,  in  keeping  the  same  in  due  repair,  and  in  due 
examination  into  its  condition,  and  if  they  took  such  care,  and  the  acci- 
dent happened  without  any  fault  or  negligence  on  their  part,  but  b} 
reason  of  a  defect  which  they  could  not  discover,  then  the  verdict 
should  be  for  them  ;  and  that  the  plaintiff  was  not  entitled  to  a  verdict 
unless  the  jury  were  of  opinion  tliat  there  was  some  degree  of  actual 
fault  or  negligence  on  the  part  of  the  defendants. 

8 


114  LIABILITY    OF    THE    CARRIER   FOR    NEGLIGENCE. 

Ingalls  V.  Bills. 

The  judge  declined  giving  these  instructions,  but  submitted  the  evi- 
dence to  the  jury,  with  instructions  that  the  defendants  were  bound  b}- 
law,  and  by  an  implied  promise  on  their  part,  to  provide  a  coach  not 
only  apparently,  but  really,  roadworthy ;  that  they  were  liable  for  any 
injur}'^  that  might  arise  to  a  passenger  from  a  defect  in  the  original  con 
struction  of  the  coach,  although  the  imperfeclioii  was  not  visible  and 
could  not  be  discovered  upon  inspection  and  examination ;  and  that  if 
the  jury  were  satisfied,  from  the  evidence,  that  the  axletree  broke  in 
consequence  of  the  original  flaw  or  defect  in  the  interior  thereof,  and 
the  plaintiff  was  injured  thereby,  he  was  entitled  to  a  verdict,  although 
that  flaw  was  invisible  and  could  not  be  discovered  by  inspection  and 
examination  externally. 

The  defendants  further  insisted  that  if  the  plaintiff  jumped  from  the 
coach  without  necessity,  and  that  necessity  brought  upon  him  by  them, 
they  were  not  liable ;  and  that  although  a  passenger  might  have  jumped 
off  without  imprudence,  still,  if  the  plaintiff  might  have  remained  in 
his  seat  without  imprudence,  his  jumping  off  was  to  be  considered  as 
his  own  act,  and  was  done  at  his  own  peril. 

Upon  this  point  the  judge  directed  the  jury  to  inquire  whether  the 
plaintiff's  jumping  off  was,  under  the  existing  circumstances,  an  act  of 
reasonable  precaution ;  and  instructed  them  that  if  the  plaintiff  was 
placed  in  such  a  perilous  situation,  in  consequence  of  the  defendants' 
failure  to  fulfil  their  ol)ligation  aforesaid,  that  as  a  prudent  precaution, 
for  the  purpose  of  self-preservation,  he  was  induced  to  leap  from  the 
coach,  the  owners  were  answerable  for  any  injury  he  might  have  sus- 
tained thereby,  although  it  might  now  appear  that  he  might  without 
injury  have  retained  his  seat. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  defendants 
alleged  exceptions. 

The  argument  was  had  at  the  last  March  term. 

Parsons,  for  the  defendants.  —  Carriers  of  passengers  are  not  liable 
for  accidents  which  no  skill  or  care  can  prevent.  They  are  not  insurers, 
and  are  only  bound  to  transport  passengers  as  safely  as  human  fore- 
sight and  care  will  permit.  The  distinction  between  the  liabiHties  of 
carriers  of  goods  and  carriers  of  passengers  has  long  been  established.^ 
It  is  impossible  to  distinguish  the  case  at  bar  from  the  case  of  Christie 


»  2  Kent's  Comm.  (3d  ed.)  598-601;  Story  37;  Dudley  v.  Smith,  1  Camp.  167;  Hollister 

on  Bail.  (3d  ed.),  §§  498,  571a,  590,  592;  Aston  v.  Nowlen,  19  Wend.  236;  Crofts  v.  Water- 

V.  Heaven,  2  Esp.  533;  McKinney  v.  Neil,  1  house,  3  Bing.  321;   s.   c.  11  J.  B.  Moo.  137; 

McLean,  340;  Camden  etc.  R.  Co.  v.  Burke,  Boyce  ».  Anderson,  2  Pet.  150;  Stokes  tr.  Sal- 

13  Wend.  611,  G27  ;  Jackson  v.  ToUett,  2  Stark.  tonstaU,  13  Pet.  181 ;  Ware  v.  Gay,  11  Pick.  106. 


LATENT  DEFECTS  IN  HIS  VEHICLE.  115 

Supreme  Judicial  Court  of  Massachusetts. 

V.  Griggs,^  where  Mansfield,  C.  J.,  said,  "if  the   axletree  was  sound 
as  far  as  human  eye  could  discover,  the  defendant  was  not  liable." 

L.  Williams  and  Nutter,  for  the  plaintiff.  — Though  there  is  a  well- 
settled  distinction  between  the  liabilities  of  common  carriers  of  goods. 
and  passenger  carriers,  yet  the  latter  are  liable  for  the  insufficiency  of 
iheir  carriages.  They  warrant  that  their  vehicles  are  fit  for  the  use  to 
which  they  are  appHed.  This  principle  removes  the  apparent  discrep- 
ancy in  the  adjudged  cases. ^  In  Crofts  v.  Waterhouse,^  Best,  C.  J.. 
says,  the  coachman  (among  other  things)  must  be  provided  with  "  a 
coach  and  harness  of  sufficient  strength  and  properly  made.  If  there 
be  the  least  failure  in  an}'^  one  of  these  things,  the  dut\^  of  the  coach 
proprietors  is  not  fulfilled,  and  they  are  answerable  for  any  injury  cr 
damage  that  happens."  In  Christie  v.  Gfriggs,^  Mansfield,  C.  J.,  said 
it  lay  on  the  defendant  "  to  show  that  the  coach  was  as  good  a  coach  at. 
could  be  made ; "  and  this  is  recognized  as  law  in  11  Pick.  112. 

The  case  of  Sharp  v.  Grey^  is  decisive  for  the  present  plaintiff.  The 
action  in  that  case,  as  in  the  case  at  bar,  was  assumpsit  on  an  undertak- 
ing to  convey'  the  plaintiff  safely.  Gaselee,  J.,  said,  "The  burden 
lay  on  the  defendant  to  show  there  had  been  no  defect  in  the  construc- 
tion of  the  coach.  Whether  there  had  been  or  not  was  a  question  of 
fact,  on  which  the  jury  have  determined.  In  Christie  v.  Griggs,  the 
accident  was  occasioned  by  a  kennel  which  crossed  tho  road,  and  not  by 
any  defect  in  the  vehicle."  Bosanquet,  J.,  said,  "The  defendant  was 
bound  to  provide  a  safe  vehicle,  and  the  accident  happened  from  a 
defect  in  the  axletree.  If  so,  when  the  coach  started  it  wa=i  not  road- 
worthy,  and  the  defendant  is  liable  for  the  conseq  lente,  upon  he  same 
principle  as  a  ship-owner  who  furnishes  a  vessel  which  is  not  seaworthy." 
A  ship-owner  is  answerable  for  the  consequences  of  a  latent  defect  in  his 
vessel.^ 

The  decision  in  Crofts  v.  Waterhoiise''  does  not  conflict  vith  the  doc- 
trine for  which  the  plaintiff  contends.  That  was  an  action  for  negligence, 
and  of  course  could  not  be  maintained  without  proof  of  negligence. 

Greenleaf,  in  reply.  — The  decision  in  Sharp  v.  Grey  went  no  further 
than  former  decisions.  In  that  case,  the  defect  in  the  axletree  might 
have  been  discovered  on  inspection,  and  it  was  left  to  the  jur}^  to  "coii- 
sider  whether  there  had  been,  on  the  part  of  the  defendant,  that  degree 


1  2  Camp.  80.  *  9  Bing.  457 ;  2  Moo.  &  S.  620. 

2  Israel  v.  Clark,  4  Esp.  259;  Bremner  ».  «  Putnam  v.  Wood,  3  Mass.  481;  Lyon  t>, 
Williams,  1  Car.  &  P.  414;  2  Stephen's  N.  Mells,  5  East,  428;  Abb.  on  Ship.  (4th  Am. 
P.  98.3;  Selw.  N.  P.  (Uth  e<l.)  420.  ed.)  218. 

3  3  Bing.  321.  <  2  Camp.  80.  '  3  Bing.  319. 


116  LIABILITY    OF    THE    CARRIER    FOK    NEGLIGENCE. 

Ingalls  V.  Bills. 

of  vigilance  which  was  required  by  his  engagement  to  carry  the  plaintiff 
safely."  The  jury  found  that  there  had  not  been  such  vigilance,  and 
the  court  refused  to  set  aside  the  verdict.  The  defendant  was  held 
liable  for  negligence,  and  not  for  unavoidable  accident.  In  the  case  at 
bar,  the  defect  in  the  axletree  could  not  have  been  discovered.  And 
Harris  v.  Costar  i  shows  that  a  count  upon  an  undertaking  to  carry  a 
passenger  safely  cannot  be  supported  without  proof  of  some  actual 
negligence  of  the  defendant.^ 

The  silence  of  the  books  on  the  subject  of  an  action  by  a  passenger 
against  a  ship-owner  for  injury  caused  by  a  latent  defect  in  a  vessel  is 
an  answer  to  the  plaintiff's  argument  drawn  from  a  simile  used  by 
BosANQUET,  J.,  in  Sharp  v.  Grey. 

Hubbard,  J.  —  The  question  presented  in  this  case  is  one  of  much 
importance  to  a  community  like  ours,  so  many  of  whose  citizens  are 
engaged  in  business  which  requires  their  transportation  from  place  to 
place  in  vehicles  furnished  by  others ;  and  though  speed  seems  to  be  the 
most  desirable  element  in  modern  travel,  yet  the  law  points  more 
specifically  to  the  security  of  the  traveller. 

Under  the  charge  of  the  learned  judge  who  tried  this  case,  we  are 
called  upon  to  decide  whether  the  proprietors  of  stage-coaches  are 
answerable  for  all  injuries  to  passengers  arising  from  accidents  happen- 
ing to  their  coaches,  although  proceeding  from  causes  which  the  greatest 
care  in  the  examination  and  inspection  of  the  coach  could  not  guard 
against  or  prevent ;  or,  in  other  words,  whether  a  coach  must  be  alike 
free  from  secret  defects  which  the  owner  cannot  detect  after  the  most 
critical  examination,  as  from  those  which  might,  on  such  an  examina- 
tion, be  discovered. 

The  learned  judge  ruled  that  the  defendants,  as  proprietors  of  a 
coach,  were  bound  by  law,  and  by  an  implied  promise  on  their  part,  to 
provide  a  coach,  not  only  apparently,  but  really,  roadworthy ;  and  that 
they  were  liable  for  any  injury  that  might  arise  to  a  passenger  from  a 
defect  in  the  original  construction  of  the  coach,  although  the  imperfec- 
tion was  not  visible,  and  could  not  be  discovered  upon  inspection  and 
examination. 

The  law  respecting  common  carriers  has  ever  been  rigidly  enforced, 
nnd  probably  there  has  been  as  little  relaxation  of  the  doctrine  as 
maintained  by  the  ancient  authorities,  respecting  this  species  of  contract, 
as  in  any  one  branch  of  the  common  law.  This  arises  from  the  great 
confidence  necessarily  reposed  in  persons  engaged  in  this  employment. 

1  1  Car.  &  p.  636.  '  gee  Bretherton  v.  Wood,  3  Brod.  &  B.  54. 


LATENT    DEFECTS    IN    HIS    VEHICLE.  117 

Supreme  Judicial  Court  of  Massachusetts. 

Goods  are  intrusted  to  their  sole  charge  and  oversight,  and  for  which 
they  receive  a  suitable  compensation ;  and  they  have  been  and  still  are 
held  responsible  for  the  safe  delivery  of  the  goods,  with  but  two  excep- 
tions, viz.,  the  act  of  God  and  of  the  king's  enemies  ;  so  that  the  owners 
of  goods  may  be  protected  against  collusive  robberies,  against  thefts 
and  embezzlements,  and  negligent  transportation.  But  in  regard  to 
the  carriage  of  passengers,  the  same  principles  of  law  have  not  been 
applied ;  and  for  the  olivious  reason  that  a  great  distinction  exists 
lietween  persons  and  goods,  the  passengers  being  capable  of  taking 
care  of  themselves,  and  of  exercising  that  vigilance  and  foresight  in 
the  maintenance  of  their  rights  which  the  owners  of  goods  cannot  do, 
who  have  intrusted  them  to  others. 

It  is  contended  by  the  counsel  for  the  plaintiff  that  the  proprietor  of 
a  stage-coach  is  held  responsible  for  the  safe  carriage  of  passengers  so 
far  that  he  is  a  warrantor  that  his  coach  is  roadworthy,  that  is,  is  abso- 
hitely  sufficient  for  the  performance  of  the  journey  undertaken ;  and 
that  if  an  accident  happens,  the  proof  of  the  greatest  care,  caution,  and 
diligence  in  the  selecting  of  the  coach,  and  in  the  preservation  of  it 
during  its  use,  will  not  be  a  defence  to  the  owner ;  and  it  is  insisted  that 
this  position  is  supported  by  various  authorities.  The  cases,  among 
many  others  cited,  which  are  more  especially  relied  upon  are  those  of 
Israel  v.  Clark^^  Crofls  v.  Waterhouse,^  Bremner  v.  WilUams^'^  and 
Sharp  V.  Grey.^  If  these  cases  do  uphold  the  doctrine  for  which  they 
are  cited,  they  are  certainly  so  much  in  conflict  with  other  decided 
cases  that  they  cannot  be  viewed  in  the  light  of  established  authorities. 
But  we  think,  upon  an  examination  of  them,  and  comparing  them  with 
other  cases,  they  will  not  be  found  so  clearly  to  sustain  the  position  of 
the  plaintiff  as  has  been  argued. 

It  must  be  borne  in  mind  that  the  carrying  of  passengers  for  hire  in 
coaches  is  comparatively  a  modern  practice,  and  that  though  suits 
occur  against  owners  of  coaches  for  the  loss  of  goods,  as  early  as  the 
time  of  Lord  Holt,  yet  the  first  case  of  a  suit  to  recover  damages  by 
a  passenger,  which  I  have  noticed,  is  that  of  Wliite  v.  BouUon^^  which 
was  tried  before  Lord  Kenton  in  1791,  and  published  in  1795.  That 
was  an  action  against  the  proprietors  of  the  Chester  mail-coach  for  the 
negligence  of  the  driver,  by  reason  of  which  the  coach  was  overturned 
and  the  plaintiff's  arm  broken,  and  in  which  he  recovered  damages  for 


1  4  Esp.  259.  »  1  Car.  &  P.  414. 

«  3  Bing.  319.  «  9  Bing.  457.        :■  Peak.  113. 


118  LIABILITY    OF    THK    CARRIER    FOR    NEGLIGENCE. 

Ingalls  V.  Bills. 

theinjuiy;  and  Lord  Kenyon,  in  delivering  his  opinion,  said,  "  Wlien 
these  [mail]  coaches  carried  passengers^  tlie  proprietors  of  them  weri- 
bound  to  carry  tliem  safely  and  properly."  The  correctness  of  the 
opinion  cannot  be  doubted  in  its  application  to  a  case  of  negligence. 
The  meaning  of  the  word  "safely,"  as  used  in  declarations  I'oi'  this 
species  of  injury,  is  given  hereafter. 

The  next  case  which  occurred  was  that  of  Aston  v.  Heaven,^  in  1797, 
which  was  against  the  defendants,  as  proprietors  of  the  Salisbury  stage- 
coach, for  negligence  in  the  driving  of  their  coach,  in  consequence  of 
which  it  was  overset  and  the  plaintiff  injured.  This  action  was  tried 
before  Eyre,  C.  J.  It  was  contended  by  the  counsel  for  the  plaintiff 
that  coach-owners  were  liable  in  all  cases  except  where  the  injury 
happens  from  the  act  of  God  or  of  the  king's  enemies  ;  but  the  learned 
judge  held  that  cases  of  loss  of  goods  by  carriers  were  totally  unlike 
the  case  before  him.  In  those  cases,  the  parties  are  protected  by  the 
custom ;  but  as  against  carriers  of  persons,  the  action  stands  alone  on 
the  ground  of  negligence. 

The  next  case  was  that  of  Israel  v.  Clark^'^  in  1803,  where  the  plaintiff 
sought  to  recover  damages  for  an  injury  arising  from  the  overturning 
of  the  defendants'  coach  in  consequence  of  the  axletree  having  broken ; 
and  one  count  alleged  the  injury  to  have  arisen  from  the  overloading  of 
the  coach.  It  was  contended  that  if  the  owners  carried  more  pas- 
sengers than  they  were  allowed  by  act  of  Parliament,  that  should  be 
deemed  such  an  overloading.  To  this  Lord  Ellenborodgh,  who  tried 
the  cause,  assented,  and  said,  "If  they  carried  more  than  the  statute 
allowed,  they  were  Uable  to  its  penalties  ;  but  they  might  not  be  entitled 
to  carry  so  many ;  it  depended  on  the  strength  of  the  carriage.  They 
were  bound  b}'  law  to  provide  sufficient  carriages  for  the  safe  convey- 
ance of  the  public  who  had  occasion  to  travel  by  them.  At  all  events, 
he  would  expect  a  clear  landworthiness  in  the  carriage  itself  to  be 
established."  This  is  one  of  the  cases  upon  which  the  present  plaintiff 
specially  relies.  It  was  a  nisi  jjriiis  case,  and  it  does  not  appear  upon 
which  count  the  jury  found  their  verdict.  But  the  point  pending  in 
the  present  case  was  neither  discussed  nor  started,  viz.,  whether  the 
accident  arose  from  the  negligence  of  the  owner  in  not'  providing  a 
coach  of  sufficient  strength,  or  from  a  secret  defect  not  discoverable 
upon  the  most  careful  examination.  No  opinion  was  expressed  whether 
the  action  rests  upon  negligence  or  upon  an  implied  warranty.     But  it 

1  2  Esp.  533.  «  4  Esp.  259. 


LATENT  DEFECTS  IN  HIS  VEHICLE.  119 

Supreme  Judicial  Court  of  Massachusetts. 

was  stated  that  the  defendants  were  bound  by  law  to  provide  sufficient 
carriages  for  the  passage,  and  at  all  events  that  there  should  be  a  clear 
landworthiness  in  the  carriage  itself. 

The  general  position  is  not  denied  with  regard  to  the  duly  of  an 
owner  to  provide  safe  carriages.  The  duty,  however,  does  not  in  itself 
import  a  warranty.  The  judge  himself  may  have  u^ed  stronger  expres- 
sions, in  the  terms  "landworthiness  in  the  carriage,"  than  he  intended 
l)y  the  thought  of  seaworthiness  in  a  ship,  and  the  duty  of  ship-owners 
in  that  respect.  If  the  subject  had  been  discussed,  and  the  distinctions 
now  presented  had  been  raised,  and  then  the  opinion  had  followed  as 
expressed  in  the  report,  it  would  be  entitled  to  much  more  considera- 
tion than  the  mere  strength  of  the  words  now  impart  to  it. 

The  next  case  was  that  of  Christie  v.  Griggs,^  in  1809.  There,  the 
axletree  of  the  coach  snapped  asunder  at  a  place  where  there  was  a 
slight  descent  from  the  kennel  crossing  the  road,  and  the  plaintiff  was 
thrown  from  the  top  of  the  coach.  Sir  James  Mansfield,  in  instructing 
the  jury,  said:  "As  the  driver  had  been  cleared  of  negligence,  the 
question  for  the  jury  was  as  to  the  sufficiency  of  the  coach.  If  the 
axletree  was  sound,  as  far  as  human  eye  could  discover,  the  defendant 
was  not  liable.  There  was  a  difference  between  a  contract  to  carry 
goods  and  a  contract  to  carry  passengers.  For  the  goods,  the  carrier 
was  answerable  at  all  events,  but  he  did  not  warrant  the  safety  of  i-ho 
passengers.  His  undertaking  as  to  them  went  no  further  than  this, 
that,  as  far  as  human  care  and  foresight  could  go,  he  would  provic'e  for 
their  safe  conveyance.  Therefore,  if  the  brenking  down  of  the  c  acli 
was  purely  accidental,  the  plaintiff  had  no  remedy  for  the  misfortune-  he 
had  encountered." 

The  case  of  Bremner  v.  Williams,^  in  1824,  is  relied  on  by  the  plain- 
tiff. There,  Best.  C.  J.,  said  he  considered  that  "  every  coach  proprietor 
warrants  to  tlie  public  that  his  stage-coach  is  equal  to  the  journey  it 
imdertakes,  and  that  it  is  his  duty  to  examine  it  previous  to  the  com- 
mencement of  every  journey."  And  so,  in  Cmfts  v.  WatcrJwuse,^  in 
1825,  Best,  C.  J.,  said,  "The  coachman  must  have  competent  skill, 
and  use  that  skill  with  diligence  ;  he  must  be  well  acquainted  with  the 
road  be  undertakes  to  drive ;  he  must  be  provided  with  steady  horses, 
a  coach  and  harness  of  sufficient  strength  and  properly  made;  and  also 
with  lights  by  night.  If  there  be  the  least  failure  in  any  one  of  these 
things,  the  duty  of  the  coach  proprietors  is  not  fulfilled,  and  they  are 
answerable  for  any  injury  or  damage  that  happens."     But  though  this 

1  2  Camp.  79.  2  1  Car.  &  P.  414.  »  3  Bing.  32L 


120  LIABILITY    OF    THE    CARRIER   FOR    NEGLIGENCE. 

Ingalls  V.  Bills. 

language  is  strong,  and  would  apparently  import  a  warranty,  on  the  part 
of  the  stage  proprietor,  as  to  the  sufficiency  of  his  coach,  yet  Park,  J.» 
in  the  same  case,  said,  "  a  carrier  of  passengers  is  only  liable  for  negli- 
gence." This  shows  that  the  court  did  not  mean  to  lay  down  the  law 
that  a  stage  proprietor  is  in  fact  a  warrantor  of  the  sufficiency  of  his 
coach  and  its  equipments,  but  that  he  is  bound  to  use  the  utmost  dili- 
gence and  care  in  making  suitable  prevision  for  those  whom  he  carries ; 
and  we  think  such  a  construction  is  warranted  by  the  language  of  the 
same  learned  judge  (Best)  in  the  case  of  Harris  v.  Costar,^  in  1825, 
where  the  averment  in  the  declaration  was  that  the  defendant  under- 
took to  carry  the  plaintiff  safely.  The  judge  held  that  it  did  not 
mean  that  the  coach  proprietor  undertook  to  convey  safely  absolutely, 
but  that  it  was  to  be  construed  like  all  other  instruments,  taking  the 
whole  together,  and  meant  that  the  defendants  were  to  use  due  care. 

But  the  case  mainly  relied  upon  by  the  plaintiff  is  that  of  Sharp 
v.  Grey,^  where  the  axletree  of  a  coach  was  broken  and  the  plaintiff 
injured.  There,  the  axle  was  an  iron  bar  enclosed  in  a  frame  of  wood 
of  four  pieces,  secured  by  clamps  of  iron.  The  coach  was  examined, 
and  no  defect  was  obvious  to  the  sight.  But  after  the  accident  a 
defect  was  found  in  a  portion  of  the  iron  bar,  which  could  not  be 
discovered  without  taking  off  the  wood- work;  and  it  was  proved 
that  it  was  not  usual  to  examine  the  iron  under  the  wood-work,  as 
it  would  rather  tend  to  insecurity  than  safety.  It  does  not  appear, 
by  the  statement,  that  the  defect  could  not  have  been  seen  on  taking  off 
the  wood-work,  but  it  would  rather  seem  that  it  might  have  been  dis- 
covered. However  that  may  be,  the  language  of  different  judges,  in 
giving  their  opinions,  is  relied  upon  as  maintaining  the  doctrines  eon- 
tended  for  by  the  plaintiff.  Gaselee,  J.,  held  that  "  the  burden  lay  on 
the  defendant  to  show  there  had  been  no  defect  in  the  construction  of 
the  coach."  Bosanquet,  J.,  said  "the  Chief  Justice  [who  tried  the 
case]  held  that  the  defendant  was  bound  to  provide  a  safe  vehicle,  and 
the  accident  happened  from  a  defect  in  the  axletree.  If  so,  when  the 
coach  started  it  was  not  roadworthy,  and  the  defendant  is  liable  for  the 
consequences  upon  the  same  principle  as  a  ship-owner  who  furnishes  a 
vessel  which  is  not  seaworthy."  And  Alderson,  J.,  said  he  was  of  the 
same  opinion,  and  that  "a  coach  proprietor  is  liable  for  all  defects  in 
his  vehicle,  which  can  be  seen  at  the  time  of  construction,  as  well  as 
for  such  as  may  exist  afterwards  and  be  discovered  on  investigation. 
The  injury  in  the  present  case  appears  to  have  been  occasioned  by  an 

1  1  Car.  &  P.  636.  «  9  Bing.  457. 


LATENT    DEFECTS    IN    HIS    VEHICLE.  121 

Supreme  Judicial  Court  of  Massachusetts. 

original  defect  of  construction ;  and  if  the  defendant  were  not  respon- 
sible, a  coach  proprietor  might  buy  ill-constructed  or  unsafe  vehicles 
and  his  passengers  be  without  remedy." 

This  case  goes  far  to  support  the  plaintiff  in  the  doctrine  contended 
for  by  his  counsel,  as  it  would  seem  to  place  the  case  upon  the  ground 
that  the  coach  proprietor  must,  at  all  events,  provide  a  coach  absolutely 
and  at  all  times  sufficient  for  the  journey,  and  that  he  is  a  warrantor 
to  the  passenger  to  provide  such  a  coach ;  but  we  incline  to  believe 
the  learned  judges  gave  too  much  weight  to  the  comparison  of 
BosANQUET,  J., — viz.,  that  a  coach  must  be  roadworthy  on  the  same 
principle  that  a  ship  must  be  seaworthy.  We  think  the  comparison 
is  not  correct,  and  that  the  analogy  applies  only  where  goods  are 
carried,  and  not  where  passengers  are  transported.  And  no  case  has 
been  cited  where  a  passenger  has  sued  a  ship-owner  for  an  injury 
arising  to  him  personally  in  not  conducting  him  in  a  seaworthy  ship. 
If  more  was  intended  by  the  learned  court  than  that  a  coach  proprietor 
is  bound  to  use  the  greatest  care  and  diligence  in  providing  suitable 
and  sufficient  coaches  and  keeping  them  in  a  safe  and  suitable  condi- 
tion for  use,  we  cannot  agree  with  them  in  opinion.  To  give  their 
language  the  meaning  contended  for  in  the  argument  of  the  case  at 
bar,  is,  in  fact,  to  place  coach  proprietors  in  the  same  predicament  with 
common  carriers,  and  to  make  them  responsible,  in  all  events,  for  the 
safe  conduct  of  passengers,  so  far  as  the  vehicle  is  concerned.  But  that 
the  case  of  Sharp  v  Orey  is  susceptible  of  being  placed  on  the  ground 
which  we  think  tenable,  namely,  that  negligence,  and  not  warranty, 
lies  at  the  foundation  of  actions  of  this  description,  may  be  inferred 
from  the  language  of  Mr.  Justice  Park,  who,  in  giving  his  opinion, 
says,  "  this  was  entirely  a  question  of  fact.  It  is  clear  that  there  was  a 
defect  in  the  axletree ;  and  it  was  for  the  jury  to  say  whether  the  acci- 
dent was  occasioned  by  what,  in  law,  is  called  negligence  in  the  defend- 
ant, or  not."  And  Tindal,  C.  J.,  who  tried  the  cause  before  the  jury, 
left  it  for  them  to  consider  whether  there  had  been  that  vigilance  which 
was  required  by  the  defendant's  engagement  to  carry  the  plaintiff 
safely ;  thus  apparently  putting  the  case  on  the  ground  of  negligence, 
and  not  of  warranty.  ^ 

The  same  question  has  arisen  in  this  country,  and  the  decisions 
exhiV)it  a  uniformity  of  opinion  that  coach  proprietors  are  not  liable  as 
common  carriers^  but  are  made  responsible  by  reason  of  negligence. 
In  the  case  of  Camden  and  Amhoy  Railroad  Company  v.  Burke,^  the 

1  See  also  Bretherton  v.  Wood,  8  Brod.  &  B.  54;  6  J.  B  Moo.  141 ;  An.eell  v.  Waterhouse,  6 
Man.  &  Sol.  385;  2  Chit.  1.  '  13  Wend.  626. 


122  LIABILITY    OF    THE    CARRIER    FOR    NKGLIGENCE. 

Ingalls  V.  Bills. 

court  say  that  the  proprietors  of  public  conveyances  are  liable  at  all 
events  for  the  baggage  of  passengers ;  but  as  to  injuries  to  their  per- 
sons, they  are  only  liable  for  the  want  of  such  care  and  diligence  as  is 
characteristic  of  cautious  persons.  And  in  considering  the  subject 
again,  in  the  case  of  Hollister  v.  Nowlen,^  they  say  that  "  stage-coach 
proprietors,  and  other  carriers  by  land  and  water,  incur  a  very  different 
responsibility  in  relation  to  the  passenger  and  his  baggage.  For  an 
injury  to  the  passenger,  they  are  answerable  only  where  there  has  been 
a  want  of  proper  care,  diligence,  or  skill ;  but  in  relation  to  baggage, 
thej'^  are  regarded  as  insurers,  and  must  answer  for  any  loss  not  occa- 
sioned by  inevitable  accident  or  the  public  enemies." 

In  a  case  which  occurred  in  respect  to  the  transportation  of  slaves, ^ 
Cliief  Justice  Marshall,  in  giving  the  opinion  of  the  court,  says:  "  The 
law  applicable  to  common  carriers  is  one  of  great  rigor.  Though  to 
the  extent  to  which  it  has  been  carried  and  in  cases  to  which  it  has 
been  applied  we  admit  its  necessity  and  policy,  we  do  not  think  it  ought 
to  be  carried  further,  or  applied  to  new  cases.  We  think  it  has  not  been 
applied  to  living  men,  and  that  it  ought  not  to  be  applied  to  them." 
So  in  the  case  of  Stokes  v.  Saltonstall,^  the  question  arose  and  was 
thoroughly  discussed ;  and  the  same  opinions  are  maintained  as  in  the 
cases  above  cited  from  Wendell.  And  the  whole  subject  is  examined 
by  Judge  Story,  in  his  treatise  on  Bailments,^  with  his  usual  learning, 
and  his  result  is  the  same. 

If  there  is  a  discrepancy  between  the  English  authorities  which  have 
been  cited,  we  think  the  opinions  expressed  by  Chief  Justice  Eyke  and 
Chief  Justice  Mansfield  are  most  consonant  with  sound  reason  as 
applicable  to  a  branch  of  the  law  comparatively  new,  and,  though  given 
at  nisi  priiis,  are  fully  sustained  by  the  discussions  which  the  same  sub- 
ject has  undergone  in  the  courts  of  our  own  country'.  We  have  said 
as  being  the  most  consonant  with  sound  reason  or  good  common  sense 
as  applied  to  so  practical  a  subject ;  because,  if  such  a  warranty  were 
imposed  by  force  of  law  upon  the  proprietors  of  coaches  and  other 
vehicles  for  the  conveyance  of  passengers,  they  would  in  fact  become 
the  warrantors  of  the  work  of  others,  over  whom  the^^  have  no  actual 
control,  and  —  from  the  number  of  artisans  emploj'ed  in  the  construc- 
tion of  the  materials  of  a  single  coach  —  whom  they  could  not  follow. 
Unless,  therefore,  b}^  the  application  of  a  similar  rule,  every  workman 
shall  be  held  as  the  warrantor,  in  all  events,  of  the  strength,  sufficiency, 


1  19  Wend.  236.  »  13  Pet.  181. 

»  Boyce  v.  Antlerson,  2  Pet.  155.  *  J§  59-2-600. 


LATENT    DEFECTS    IN    HIS    VEHICLE.  123 

Supreme  Judicial  Court  of  Massachusetts. 

and  adaptation  of  his  own  manufactures  to  the  uses,  designed,  —  which, 
in  a  community  like  ours,  could  not  be  practically  enforced,  — the  war- 
ranty would  really  rest  on  the  persons  purchasing  the  article  for  use, 
and  not  upon  the  makers. 

If  it  should  be  said  that  the  same  observations  might  be  applied  to 
ship-owners,  the  answer  might  be  given  that  they  have  never  been  held 
as  the  warrantors  of  the  safety  of  the  passengers  whom  they  conveyed ; 
and  as  to  the  transportation  of  goods,  owners  of  general  ships  have 
always  been  held  as  common  carriers,  for  the  same  reasons  that  carriers 
on  land  are  bound  for  the  safe  delivery  of  goods  intrusted  to  them. 
But  as  it  respects  the  seaworthiness  of  a  ship,  the  technical  rules  of  law 
respecting  it  have  been  so  repeatedly  examined,  and  the  facts  upon 
which  they  rest  so  often  investigated,  that  the  questions  which  arise  are 
those  of  fact  and  not  of  law,  and  in  a  vast  proportion  of  instances 
depend  upon  the  degree  of  diligence  and  care  which  are  used  in  the 
preservation  of  vessels,  and  practically  resolve  themselves  into  questions 
of  negligence  ;  so  that  the  rules  are  very  few  that  arise  from  the  main- 
tenance of  the  doctrine  that  a  ship  must  be  seaworthy  in  order  to  be  the 
subject  of  insurance. 

The  result  to  which  we  have  arrived,  from  the  examination  of  the  case 
before  us,  is  this:  That  carriers  of  passengers  for  hire  are  bound  to  use 
the  utmost  care  and  diligence  in  the  providing  of  safe,  sufficient,  and 
suitable  coaghes,  harnesses,  horses,  and  coachmen,  in  order  to  prevent 
those  injuries  which  human  care  and  foresight  can  guard  against;  and 
that  if  an  accident  happens  from  a  defect  in  the  coach,  which  might 
have  been  discovered  and  remedied  upon  the  most  careful  and  thorough 
examination  of  the  coach,  such  accident  must  be  ascribed  to  negligence, 
for  which  the  owner  is  liable  in  case  of  injury  to  a  passenger  happening 
by  reason  of  such  accident.  On  the  other  hand,  where  the  accident 
ai-ises  from  a  hidden  and  internal  defect,  which  a  careful  and  thorough 
examination  would  not  disclose,  and  which  could  not  be  guarded  against 
by  the  exercise  of  a  sound  judgment  and  the  most  vigilant  oversight, 
then  the  proprietor  is  not  liable  for  the  injury,  but  the  misfortune  must 
be  borne  by  the  sufferer  as  one  of  that  class  of  injuries  for  which  the 
law  can  afford  no  redress  in  the  form  of  a  pecuniary  recompense.  And 
we  are  of  opinion  that  the  instructions  which  the  defendants'  counsel 
requested  might  be  given  to  the  jury  in  the  present  case  were  correct 
in  point  of  law,  and  that  the  learned  judge  erred  in  extending  the 
liiibility  of  the  defendants  further  than  was  proposed  in  the  instructions 
requested. 

The  point  arising  on  the  residue  of  the  instructions  was  not  pressed 


124  LIABILITY    OF   THE    CARRIER   FOR    NEGLIGENCE. 

Readhead  v.  Midland  Railway  Company. 

in  the  argument ;  and  we  see  no  reason  to  doubt  its  correctness,  pro- 
vided tlie  peril  to  which  the  plaintiff  was  exposed  arose  from  a  defect 
or  accident  for  which  the  defendants  were  otherwise  liable,* 

New  trial  granted. 


2.  LIABILITY  OF  CAERIER  FOR    INJURY  TO  PASSENGER  FROM    DE- 
FECTS  m   HIS  VEHICLE. 

Readhead  v.  Midland  Railway  Company.* 
Court  of  Queen's  Bench,  1867,  and  Court  of  Exchequer  Chamber,  1869, 

1.  Measure  of  Liability.  — A  carrier  of  paesengers  is  not  answerable  as  an  insurer  for 

the  safety  of  his  vehicles  and  appliances,  but  is  liable  for  an  accident  which  may- 
happen  to  a  passenger  from  any  defect  therein  which  might  have  been  prevented 
by  the  exercise  of  due  care  on  his  part. 

2.  Illustration  —  Breaking   of  "Wheel    througrh   Secret  Defect.— A  passenger  was 

injured  in  consequence  of  the  breaking  of  the  tire  to  a  wheel  of  a  railway  carriage. 
The  tire  broke  in  consequence  of  an  air-bubble  which  had  remained  there  in  its  orig- 
inal manufacture.  It  was  shown  that  the  occasional  presence  of  air-bubbles  in  the 
tires  of  railway-car  wheels  could  not  be  prevented  by  any  means  known  to  the  manu- 
facturer of  such  wheels,  and  that  their  existence  could  not  be  discovered  by  any 
known  tests.  It  was  held  that  the  passenger  could  not  recover  damages  from  the 
railway  company. 

Declaration:  That  the  defendants  were  carriers  of  passengers  by- 
railway  from  Nottingham  to  South  Shields  for  reward ;  that  the  plain- 
tiff became  a  passenger,  to  be  safely  and  securely  carried  by  them  as 
such  carriers,  in  a  certain  train,  for  reward ;  that  the  defendants  man- 
aged and  conducted  the  train  so  carelessly,  and  took  so  little  care  in 
providing  a  proper  and  safe  carriage,  and  were  so  careless  and  negligent 
in  examining  from  time  to  time  the  wheels  of  the  carriage  in  which  the 
plaintiff  was,  that  the  carriage  was  broken  to  pieces  and  the  plaintiff 
injured. 

Plea,  not  guilty. 

At  the  trial  before  Lush,  J.,  at  the  Durham  Spring  Assizes,  1866,  the 
evidence  given  for  the  plaintiff  was,  that  he  was  a  second-class  passen- 
ger from  Nottingham  to  South  Shields  by  an  express  train  on  the 
defendants'  railway ;  he  changed  carriages  at  Trent,  and  after  proceed- 

•  Reported,  L.  R.  2  Q.  B.  412.  The  case  was  tried  at  nisi  prius  before  Lush,  J.  It  was 
argued  in  banc  before  Lush,  Mellor,  and  Blackburn,  JJ.  It  was  again  argued  on  appeal  in 
the  Exchequer  Chamber  (L.  R.  4  Q.  B.379)  before  KeIly,C.  B.,  Byles,  Keating,  and  Montague 
Smith,  JJ.,  and  Channel!  and  Iramwell,  BB. 

'  Jones  V.  Boyce,  1  Stark.  493. 


LATENT  DEFECTS  IN  HIS  VEHICLE.  125 

Englisli  Court  of  Queen's  Bench. 

ing  some  distance,  while  the  train  was  going  at  great  speed,  the  carriage 
in  which  he  was  riding  began  to  oscillate,  then  left  the  rails,  and  ulti- 
mately broke  away  from  the  first  part  of  the  train  and  turned  over. 
The  plaintiff  was  very  seriouslj'-  injured.  It  was  also  suggested  that  the 
train  was  not  brought  to  a  stand-still  so  soon  as  it  ought.  This,  how- 
•ever,  was  conclusively  negatived  by  the  defendants'  evidence.  It  was 
proved  on  the  part  of  the  defendants  that  the  cause  of  the  accident  was 
the  giving  way  of  one  of  the  wheels  of  the  carriage  in  which  the  plain- 
tiff was.  The  tire  of  the  wheel  had  broken  into  three  pieces,  owing  to 
a  flaw  in  the  welding,  caused  by  an  air-bubble.  Several  witnesses  were 
called,  who  stated  that  such  a  defect  would  sometimes  occur  in  spite  of 
the  greatest  care  on  the  part  of  the  manufacturer ;  that  it  could  not  be 
discovered  in  the  process  of  manufacture,  nor  afterwards,  either  by  the 
eye  or  from  the  ringing  of  the  metal.  It  was  further  proved  that  the 
carriage  in  question,  which  belonged  to  the  London  and  North- Western 
Company  (being  used  by  the  defendants  in  the  mutual  arrangements  of 
the  two  companies),  had  been  examined  at  the  usual  places,  — amongst 
others,  at  Trent,  —  and  that  the  wheel,  on  hammering,  then  rang  true. 
The  tire  was  of  considerably  more  than  the  minimum  thickness  to  which 
it  is  found,  in  practice,  safe  to  wear  tires. 

The  learned  judge  told  the  jury  that  the  material  question  was 
whether,  upon  the  wliole  of  the  evidence,  they  were  of  opinion  that  the 
defendants  were  guilty  of  negligence.  If  the  injury  to  the  plaintiff  was 
properly  due  to  an  accident,  —  that  is  to  say,  if  it  could  not  reasonably 
be  foreseen,  and  was  not  due  to  any  fault  or  carelessness  on  the  part  of 
the  defendants,  — the  plaintiff  was  not  entitled  to  recover.  The  learned 
judge  then  pointed  out  that  the  evidence  given  on  the  part  of  the  plain- 
tiff did  not  substantiate  the  charge  in  the  declaration,  which  he  read  to 
tliem.  The  evidence  for  the  defendants  showed  clearly  that  the  accident 
was  caused  b}'  the  breaking  of  the  tire  of  the  wheel.  The  fact  that  the 
carriage  did  not  belong  to  the  defendants  made  no  difference  in  their 
liability.  Was  there  any  evidence  of  negligence  on  the  part  of  the 
defendants  in  not  detecting  the  fault  in  the  wheel?  If,  as  the  evidence 
went  to  show,  the  defect  in  the  wheel  could  not  be  detected  either  by 
the  eye  or  the  ear,  then  there  was  no  negligence  on  the  pai't  of  the 
defendants.  Tlie  learned  judge  then  went  tlirough  the  evidence  as  to 
the  impossibility  of  always  preventing  such  latent  flaws  in  the  man- 
ufacture, or  of  detecting  them  during  the  process  or  by  subsequent 
examination.  The  jury  were  to  say,  on  the  wliole  evidence,  whether 
they  were  satisfied  that  the  injury  to  the  plaintiff  was  due  to  the  neg- 


126  LIABILITY    OF    THE    CARRIER    FOR   NEGLIGENCE. 

Readhead  v.  Midland  Railway  Company. 

leet  of  the  defendants,  or  whether  it  was  not  one  of  those  accidents  to 
which  all  are  subject,  in  which,  though  injuries  arise,  no  one  is  charge- 
able in  law  for  the  consequences.  If  the  jury  found  any  fault  on  the 
part  of  the  defendants,  as  a  breach  of  duty  on  their  part  which  the  jury 
might  think  the  defendants  ought  reasonably  to  have  performed,  then 
the  verdict  would  be  for  the  plaintiff. 

The  jury  returned  a  verdict  for  the  defendants. 

A  rule  was  obtained  for  a  new  trial,  on  the  ground  of  misdirection  of  the 
judge  in  telling  the  jury  that  the  defendants  were  entitled  to  the  verdict 
if  the  accident  was  caused  by  the  latent  defect  in  the  tire  of  the  wheel. 

June  20,  1866,  Aspimoall^  Q.  C.,  and  ^empZay,  showed  cause. — 
The  plaintiff,  in  order  to  show  that  there  has  been  misdirection,  must 
contend  that  there  is  an  implied  warranty  on  the  part  of  a  carrier  of 
passengers  that  the  carriage  in  which  the  passenger  travels  is  road- 
worthy  for  the  journey.  There  is  no  authority  for  such  a  proposition. 
Bremner  v.  Williams '  will  be  cited  by  the  other  side,  but  the  dictum 
of  Best,  C.  J.,  that  every  coach  proprietor  warrants  to  the  public  that 
his  stage-cT)ach  is  equal  to  the  journey  it  undertakes,  was  not  necessary 
to  the  decision  of  the  case.  Sharp  v.  Grey^  will  also  be  reUed  on; 
but  there  is  a  distinction  between  that  case  and  the  present.  There,  by 
unscrewing  the  iron  clamps  and  taking  off  the  wooden  frame,  the  defect 
in  the  axletree  might  have  been  discovered ;  but  here,  by  no  examina- 
tion whatever  could  the  defendants  have  discovered  the  defect  in  the 
tire  of  the  wheel.  And  it  is  also  to  be  observed  that  Tindal,  C.  J., 
in  that  case  directed  the  jury  to  consider  whether  there  had  been  on 
the  part  of  the  defendant  that  degi-ee  of  vigilance  which  was  required 
by  his  engagement  to  carry  the  plaintiff  safely ;  so  that  that  case  was 
decided  on  the  ground  of  negligence  on  the  part  of  the  carrier.  The 
law  on  the  subject,  however,  is  correctly  stated  b3'  Alderson,  J.,  in  his 
judgment:  "A  coach  proprietor  is  liable  for  all  defects  in  his  vehicle 
which  can  be  seen  at  the  time  of  construction,  as  well  as  for  such  as 
may  exist  afterwards  and  be  discovered  on  investigation."  The  evi- 
dence here  is  that  it  was  impossible  to  discover  the  defect  until  the  tire 
was  actually  broken.  As  pointed  out  by  Sir  James  Mansfield  in  Christie 
V.  Origgs,^  there  is  a  distinction  between  a  contract  to  carry  goods  and 
a  contract  to  carry  passengers  ;  for  the  goods  the  carrier  is  answerable 
at  all  events.  He  does  not  warrant  the  safety  of  the  passengers,  but 
only  that  as  far  as  human  care  and  foresight  will  go  their  safe  convey- 

»  1  Car.  &  P.  414,  416.  «  9  Bing.  467.  *  2  Camp.  81. 


LATENT  DEFECTS  IN  HIS  VEHICLE.  127 

English  Court  of  Queen's  Bench. 

ance  will  be  provided  for.  He  is  not  liable  for  the  consequences  of  a 
pure  accident.  Chrote  v.  Chester  and  Holyhead  Railway  Gompayiy'^ 
shows  that  if  a  competent  person  is  employed  to  make  the  tire,  and  he 
uses  due  and  reasonable  care  and  employs  proper  materials  in  the  work, 
the  railway  company  will  not  be  liable  for  the  defect  in  the  tire  which 
it  was  impossible  to  detect,  and  so  prevent  the  accident.  There  is  a 
dictum  of  Cress  WELL,  J.,  in  Benett  v.  Peninsular  Steamboat  Company"^ 
which  may  be  relied  on  by  the  plaintiff,  viz.,  that  Sharp  v.  Grey^  lays 
down  the  law  that  a  carrier  is  bound  at  all  events  to  provide  a  sound 
coach.  But  the  learned  judge's  observation  had  no  direct  bearing  on 
the  question  then  before  the  court. 

[Blackburn,  J.  —  It  was  held  in  Brown  v.  Edgington  "*  that  there  is 
an  implied  warranty  that  an  article  furnished  by  a  manufacturer  shall 
be  fit  and  proper  for  the  purpose  for  which  it  is  supplied.] 

Manisty,  Q.  C,  and  T.  Jones,  in  support  of  the  rule. — The  point  is 
new,  and  the  authorities  bearing  upon  it  have  been  already  cited.  It  is 
clear  that  the  ruling  of  Best,  C.  J.,  in  Bremner  v.  Williams,^  and  the 
case  of  Sharp  v.  Grey,^  are  direct  authorities  that  there  is  a  warranty 
on  the  part  of  a  coach-owner  that  his  coach  is  fit  for  the  journey.  It 
is  a  sound  rule  of  law,  because  the  passenger  injured  thus  has  his 
remedy  against  the  company,  and  the  company  against  the  person  who 
supplied  the  insufficient  vehicle.  By  analogy  to  the  case  of  the  owner 
of  a  ship  who  warrants  his  ship  seaworthy  for  the  voyage,  so  a  carrier 
of  passengers  warrants  the  vehicle  roadworthy  for  the  journey. 

Cur.  adv.  vult. 

May  15,  the  following  judgments  were  delivered: — 

Lush,  J.  — This  was  an  action,  tried  before  me,  for  an  injury  caused 
by  the  breaking  down  and  overturning  of  the  carriage  in  which  the 
plaintiff  was  travelUng  as  a  passenger  on  the  defendants'  railway.  The 
accident  arose  from  the  fi-acture  of  one  of  the  wheels  of  the  carriage, 
the  tire  of  which  had  split  into  three  pieces,  owing,  as  it  was  afterwards 
discovered,  to  a  latent  flaw  in  the  weldnig ;  and  it  was  proved,  on  the 
part  of  the  defendants,  that  at  the  commencement  of  the  journey  the 
wheel  was  to  all  appearances  strong  and  sound ;  that  such  a  flaw  in  the 
welding  may  occur  without  any  fault  on  the  part  of  the  manufacturer ; 
that  there  were  no  means  of  detecting  it  beforehand ;  and  that,  in  fact, 
the  carriage  had  been  examined,  according  to  ordinary  practice,  before 
the  train  had  started  on  the  journey,  and  had  answered  to  all  the  usual 
tests  of  soundness. 

I  2  Exch.  251.  »  9  Bing.  457.  »  1  Car.  &  P.  414. 

«  6  C.  B.  782.  *  2  Man.  &  G.  279.  •  9  Bing.  457. 


128  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 

Readhead  v.  Midland  Railway  Company. 

I  directed  the  jury  that,  if  they  believed  this  evidence,  the  defendants 
were  not  responsible  for  the  accident ;  and  they  accordingly  found  their 
verdict  for  the  defendants. 

A  rule  was  granted  for  a  new  trial,  on  the  ground  that  a  carrier  of 
passengers  is  bound  at  his  peril  to  provide  a  roadworthy  carriage,  and 
is  consequently  liable  if  the  carriage  turns  out  to  be  defective,  notwith- 
standing that  the  infirmity  was  of  such  a  nature  that  it  could  neither  be 
guarded  against  nor  discovered. 

The  question  thus  nakedly  raised  is  one  of  vast  importance  at  the 
present  day,  both  to  railway  companies  and  passengers ;  and  there 
being  no  case  in  our  reports  in  which  it  has  been  argued  and  adjudi- 
cated, we  took  time  to  consider  our  judgment.  Having  done  so,  and 
given  to  the  subject  the  best  consideration  in  my  power,  I  adhere  to  the 
opinion  that  the  law  imposes  no  such  liability  on  railway  companies ; 
though,  as  my  brother  Blackburn  has  come  to  a  different  conclusion, 
I  express  that  opinion  with  some  degree  of  diffidence. 

It  is  not  contended  that  the  obligation  of  a  carrier  of  passengers  is 
coextensive  with  that  of  a  carrier  of  goods,  who,  by  the  custom  of  the 
realm,  is  placed  in  the  position  of  an  insurer,  subject  only  to  the  excep- 
tions of  loss  or  damage  by  "the  act  of  God  or  the  public  enemies  of 
the  crown."  The  reasons  upon  which  that  liability  is  based,  and  which 
are  expressed  by  Holt,  C.  J.,  in  Coggs  v.  Bernard,^  and  by  Best,  C. 
J.,  in  miey  v.  Horne,^  are  inapplicable  to  a  carrier  of  passengers. 
The  latter  has  not  the  same  control  over  persons  which  he  has  over 
goods,  nor  the  same  opportunities  of  abuse  and  misconduct,  the  appre- 
hension of  which  gave  rise  to  this  rigorous  rule  of  law  ;  and  therefore  the 
law  has  never  imposed  upon  him  tlie  responsibility  of  an  insurer.  The 
undertaking  of  a  carrier  of  passengers,  says  Dr.  Story  in  his  work  on 
Bailments,^  is  not  an  undertaking  absolutely  to  "  carry  safely,"  but 
only  to  exercise  "  due  care  and  diligence  in  the  performance  of  his 
duty."  But  it  is  contended  that  in  this  particular  part  of  his  duty, 
viz.,  the  providing  a  suitable  vehicle,  his  undertaking  goes  bej'ond  the 
measure  of  "  due  care  and  diligence,"  and  includes  a  warranty  that  the 
carriage  which  he  provides  is  sound  and  free  from  all  defects  whieli 
render  it  unfit  for  the  service,  though  he  has  used  every  means  in  his 
|)Ower  to  make  it  sound,  and  though  he  could  not  by  any  amount  of 
care,  skill,  or  vigilance  have  ascertained  that  it  was  not  so.  The 
language  of  Story  just  quoted  does  not  suggest  any  such  qualification, 
and  surely  so  important  an  element  in  the  contract  about  which  he  is 

»  2  Ld.  Raym.  909,  91S.  2  5  Bing.  217,  220.  '  §  601. 


LATENT  DEFECTS  IN  HIS  VEHICLE.  129 

English  Court  of  Queen's  Bench. 

treating  would  have-  been  noticed  by  that  learned  writer  if  he  had  sup- 
posed it  to  exist.  No  such  Hability  is,  however,  hinted  at  throughout 
the  work ;  nor,  as  I  am  aware  of,  in  any  other  text-book.  The  proposi- 
tion is  one  which  I  cannot  adopt  witliout  authority;  because  I  can  see 
no  reason  why  a  carrier  should  be  held  to  warrant  more  than  due  care 
and  diligence  can  enable  him  to  perform,  as  respects  the  qualitj^  of  his 
carriage,  when  it  is  admitted  that  he  is  under  no  such  liability  as  respects 
the  conduct  or  management  of  it. 

We  were  pressed  with  what  were  alleged  to  be  analogous  cases  of 
a  ship-owner,  who  is  held  to  warrant  the  seaworthiness  of  his  vessel, 
and  of  a  manufacturer  of  goods  ordered  for  a  given  purpose,  who, 
it  was  contended,  is  held  to  warrant  their  fitness  and  sufficiency  for 
that  purpose.  As  to  ship-owners,  I  agree  there  is  abundant  authority 
for  the  doctrine  laid  down ;  and  moreover  that  there  is  no  distinction, 
in  this  respect,  between  a  carrier  by  water  and  a  carrier  by  land.  But 
it  is  to  be  observed  that  whenever  this  particular  liability  of  a  ship- 
owner is  mentioned,  it  has  reference  to  his  obligation  as  the  carrier  of 
cargo.  In  that  capacity,  he  is  an  insurer  of  its  safe  delivery,  subject 
only  to  the  excepted  perils.  His  warrant}'  of  seaworthiness,  in  such  a 
case,  springs  out  of  and  necessarily  results  from  the  absolute  duty  he 
has  undertaken  ;  and  it  is  not  a  warranty  superadded  to,  and  exceeding 
the  terms  and  measure  of,  his  contract  to  carry,  as  it  would  be  if  it 
were  extended  to  a  carrier  of  passengers.  A  carrier  of  goods  by 
land  may  with  equal  propriety  be  said  to  warrant  the  roadworthiness 
of  his  carriage,  because  he  warrants  against  every  casualty  by  which 
the  goods  might  be  lost  or  damaged  on  the  journey. 

As  regards  the  second  case  put,  viz.,  that  of  the  manufacturer  who 
supplies  goods  to  order  for  a  given  use  or  purpose,  I  do  not  stop  to 
consider  whether  the  analogy  is  so  complete  as  the  argument  assumes  it 
to  be,  because  it  does  not  appear  to  me  that  the  case  mainly  relied  on, 
viz.,  Brovra  v.  Edgington^^  sanctions  the  doctrine  which  is  sought  to 
be  deduced  from  it.  Upon  carefully  examining  the  facts  there,  it  will 
be  found  that  no  such  question  as  that  we  have  now  to  determine  arose 
in  the  case.  The  insufficiency  of  the  rope  was  attributable  to  causes 
which  imply  blame  in  the  manufacturer,  viz.,  to  either  a  want  of  judg- 
ment, or  a  want  of  care,  or  skill,  both,  or  all.  The  rope  was  not  strong 
enough  for  the  purpose  for  which  it  was  known  by  the  defendant  to 
have  been  required,  it  having  been  made  of  too  small  a  size,  or  of 
faulty  materials.,  or  been  badly  put  together ;  and  whatever  the  cause 

I  2  Man.  &  G.  270. 


130  LIABILITY    OF    THE    CARKIEK    FOR    NEGLIGENCE. 

Readhead  v.  Midland  Railway  Company. 

of  its  failure  was,  it  was  one  which  might  have  been  prevented,  and  it 
was  assumed  by  the  court,  as  it  was  assumed  in  the  case  of  Jones  v. 
BrigJit,^  that  the  manufacturer  might,  and  therefore  ought,  to  have 
made  it  sufficient  for  the  purpose.  The  main  contest  in  the  case 
was  whether  the  defendant  was  liable,  seeing  that  he  was  not  the 
manufacturer  of  the  rope,  but  had  procured  it  from  a  rope-maker. 
The  question  of  liability  for  a  hidden,  undiscoverable,  and  unavoid- 
able defect  was  not  present  to  the  mind  of  any  of  the  judges  wlio^ 
decided  that  case.  I  cannot,  therefore,  regard  it  as  an  authority  t<>^ 
the  extent  necessary  to  sustain  the  plaintiff's  argument,  nor  am  I  aware 
of  any  other  case  on  that  point  which  establislied  such  a  position. 

I  do  not  feel  it  necessary  to  review  in  detail  the  cases  which  more 
directly  bear  upon  the  liabihty  of  a  carrier  of  passengers.  They  ari' 
quoted  by  Story  as  the  authorities  for  the  rule  which  he  la3's  down,  and, 
in  my  judgment,  they  do  not  carry  the  liability  further  than  he  has- 
stated  it.  In  all  of  them,  where  it  has  become  necessary  to  define  that 
liability,  the  judges  have  carefully  distinguished  between  a  carrier  of 
passengers  and  a  carrier  of  goods,  and  have  pointedly  declared  that  thi- 
liability  of  the  former  stands  on  the  ground  of  negligence  alone. ^  Un- 
doubtedly there  are  expressions  used  in  some  of  those  cases  which,  if 
taken  alone,  and  without  reference  to  the  particular  facts,  favor  thf 
argument  of  the  plaintiff.  See  per  Lord  Ellenborough,  in  Israel  v. 
Clark ]^  Best,  C.  J.,  in  Bremner  v.  Williams;'^  and  per  Gaselee  and 
BosANQUET,  JJ.,  in  Sharp  v.  Grey.^  But  reading  such  expressions  as 
they  should  be  read,  in  connection  with  and  as  applicable  to  the  facts 
of  each  case,  it  is  to  my  mind  evident  that  the  learned  judges  who  used 
them  did  not  intend  them  to  be  understood  in  the  sense  now  imputed 
to  them.  The  decisions  in  those  cases  in  which  such  expressions  are 
used  seem  to  me  against  the  plaintiff,  rather  than  decisions  in  his  favor. 
In  Sharp  v.  Grey,^  the  case  most  pressed  in  the  argument  by  the  plain- 
tiff's counsel,  as  also  in  the  case  of  Christie  v.  Griyys,''  the  axletree  had, 
witliout  any  external  cause  to  account  for  it,  suddenly  snapped.  If 
there  was  such  a  warranty  as  is  now  insisted  on,  that  warranty  had 
clearly  been  broken,  for  the  coach  had  turned  out  to  be  not  road- 
worthy.  There  was,  therefore,  nothing  to  go  to  the  jury  but  the 
amount  of  damages ;  whereas  in  each  case  the  question  was  left  to 
the  jury  whether  the  defendant  was  liable  as  guilty  of  a  want  of  due 


1  6  Bing.  633.  »  4  Esp.  259. 

s  See  Aston    .  Heaven, 2  Esp.  533;  Christie  *  1  Car.  &  P.  416. 

V.  Griggs,  2  Camp.  79;  Crofts  v.  Waterliouse,  ^  9  Bing.  453. 

8  Biug.  321.  «  9  Biug.  457.  T  2  Camp.  79. 


LATENT  DEFECTS  IN  HIS  VEHICLE.  131 

English  Court  of  Queen's  Bench. 

care  or  not.  In  Sharp  v.  Grey,  the  jury  found  a  verdict  for  the  plain- 
tiff, which  the  court  refused  to  disturb ;  in  Cliristie  v.  Griggs,  they  found 
for  the  defendant,  and  no  motion  appears  to  have  been  made  to  set 
this  verdict  aside.  Coming  down  to  a  more  recent  period,  I  find  the 
same  doctrines  laid  down  by  the  Lord  Chief  Justice  of  this  court  in 
Stokes  V.  Eastern  Counties  Railway  Company.^  That  was  a  case  exactly 
similar  to  the  present.  The  wheel  had  broken  from  a  latent  flaw  in  the 
welding,  and  great  injury  had  been  done  to  several  passengers.  After 
a  very  lengthened  trial,  the  jury  found  a  verdict  for  the  defendants ; 
and  although  the  plaintiff  in  that  case,  and  many  other  persons,  were 
deeply  interested  in  questioning  the  ruling  of  the  Lord  Chief  Justice, 
no  attempt  was  made  to  set  aside  the  verdict. 

As  far,  therefore,  as  the  authorities  in  this  country  go,  they  are  against 
the  position  taken  by  the  plaintiff ;  and  considering  that  many  such  acci- 
dents have  occurred  since  the  introduction  of  railways,  the  fact  that 
this  is  the  first  time  so  extensive  a  liability  has  been  insisted  on  argues 
a  general  impression  against  it.  But  though  the  question  has  not  before 
been  presented  for  solemn  adjudication  in  this  country,  it  has  been 
raised  more  than  once  in  the  courts  of  the  United  States,  and  in  every 
case  the  judgment  has  been  in  favor  of  the  carrier.  In  Ingalls  v.  Bills,^ 
the  court  delivered  an  elaborate  judgment,  reviewing  all  the  authorities, 
English  and  American,  and  affirming  the  doctrine  that  a  carrier  of  pas- 
sengers is  liable  only  for  negligence. 

For  these  reason^,  I  am  of  opinion  that  the  rule  must  be  discharged. 

Mellor,  J. — In  this  case  the  plaintiff,  being  a  passenger  on  the 
line  of  defendants'  railway,  sustained  an  injury  by  the  breaking  of  one 
of  the  wheel-tires  of  the  carriage  in  which  he  was  travelling,  owing  to  a 
latent  defect  in  its  construction,  not  discoverable  by  the  most  careful 
examination. 

My  brother  Lush,  who  presided  at  the  trial,  in  leaving  the  case  to  the 
jury,  told  them  that  a  carrier  of  passengers  for  hire  was  bound  to  use 
the  utmost  care,  skill,  and  diligence  in  every  thing  that  concerned  the 
safety  of  passengers ;  but  that  if  the  injury  was  due  to  a  hidden  defect 
in  the  carriage,  which  the  utmost  care  and  skill  could  not  discover,  the 
defendants  were  not  responsible.  I  have  come  to  the  conclusion  that 
such  a  direction  was  right,  and  that  the  rule  for  a  new  trial  must  be  dis- 
charged. 

The  propriety  of  that  direction  depends  upon  the  nature  and  extent 

1 3  Fost.  &  Fin.  691.  »  9  Mete.  1,  cited  in  the  7th  ed.  of  Story  on  Bail.  665. 


132  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 

Readhead  v.  Midland  Railway  Company. 

of  the  liability  which  a  carrier  of  passengers  for  hire  undertakes  with 
regard  to  each  passenger. 

The  responsibility,  both  of  common  carriers  of  goods  for  hire  and  of 
common  carriers  of  passengers  for  hire,  notwithstanding  some  impor- 
tant differences  between  them,  rests  for  its  foundation  upon  the  general 
custom  of  the  realm ;  in  other  words,  upon  the  common  law ;  and  the 
liability  of  each  class  of  carriers  (where  it  is  not  affected  by  some 
special  contract)  arises  from  a  duty  implied  by  law,  although  the  law 
will  raise  a  contract  as  springing  from  that  duty.^  Until  the  time  of 
Dale  V.  Hall,^  it  seems  to  have  been  the  usual  mode  to  declare  against 
common  carriers,  either  of  goods  or  passengers,  setting  forth  the  cus- 
tom of  the  realm  ;  when  it  was  supplanted  by  the  modern  mode  of 
declaring  either  in  case  for  breach  of  dut}^  or  on  the  contract  arising 
out  of  the  duty  so  implied  by  law.  In  Coggs  v.  Bernard,'^  Lord  Holt, 
in  defining  his  fifth  sort  of  bailment,  says,  first,  "if  it  [the  delivery  of 
goods]  be  to  a  person  of  the  first  sort,  [that  is,  one  who  exercises  a 
public  employment]  and  he  is  to  have  a  reward,  he  is  bound  to  answer 
for  the  goods  at  all  events ;  and  this  is  the  case  of  the  common  carrier, 
common  hoyman,  master  of  a  ship,  etc.  *  *  *  Xhe  law  charges 
this  person,  thus  intrusted  to  carry  goods,  against  all  events  but  acts  of 
God  and  the  enemies  of  the  king.  For  though  the  force  be  never  so 
great,  as  if  an  unreasonable  number  of  people  should  rob  him,  never- 
theless he  is  chargeable.  And  this  is  a  politic  establishment  contrived 
by  the  policy  of  the  law  for  the  safety  of  all  persons,  the  necessity  of 
whose  affairs  oblige  them  to  trust  these  sort  of  persons,  that  they  may 
be  safe  in  their  ways  of  dealing ;  for  else  these  carriers  might  have  an 
opportunity  of  undoing  all  persons  that  had  any  dealings  with  them,  by 
combining  with  thieves,  etc.,  and  yet  doing  it  in  such  a  clandestine  man- 
ner as  would  not  be  possible  to  be  discovered.  And  this  is  the  reason  the 
law  is  founded  upon  in  that  point."  And  in  the  case  of  Riley  v.  Horne^^ 
Chief  Justice  Best,  in  treating  upon  the  same  subject,  said:  "When 
goods  are  delivered  to  a  carrier,  they  are  usually  no  longer  under  the 
eye  of  the  owner ;  he  seldom  follows  or  sends  any  servant  with  them  to 
the  place  of  their  destination.  If  they  should  be  lost  or  injured  by  the 
grossest  negligence  of  the  carrier  or  his  servants,  or  stolen  by  them,  or 
by  thieves  in  collusion  with  them,  the  owner  would  be  unable  to  prove 
either  of  these  causes  of  loss ;  his  witnesses  must  be  the  carrier's  ser- 

1  Bretherton  v.  Wood,  3  Brod.  &  B.  54;  3  2  Ld.  Raym.  913;  1  Smith's  Ld.  Cas.  (6th 

AnseU  V.  Waterhouse,  6  Mau.  &  Sel.  385.  ed.)  189. 

'■i  1  WUs.  281.  *  6  Bing.  220. 


LATENT  DEFECTS  IN  HIS  VEHICLE.  133 

English  Court  of  Queen's  Bench. 

vants,  and  they,  knowing  that  they  could  not  be  contradicted,  would 
excuse  their  masters  and  themselves.  To  give  due  security  to  property, 
the  law  has  added  to  that  responsibility  of  a  carrier  which  immediately 
arises  out  of  his  contract  to  carry  for  reward,  namely^  that  of  taking  all 
reasonable  care  of  it,  the  responsibility  of  an  insurer."  This  judgment 
is  cited  with  approbation  by  Mr.  Justice  Story,  ^  and,  as  far  as  I  am 
aware,  has  been  generally  considered  truly  to  express  the  reasons  upon 
which  the  policy  of  the  law  with  regard  to  common  carriers  of  goods  has 
been  founded.  The  liability  of  a  common  carrier  of  goods  is  therefore 
that  of  an  insurer,  arising  out  of  the  policy  of  the  law,  which  superadds 
such  a  responsibility  to  that  springing  merely  out  of  a  contract  to  cai-ry 
for  reward,  viz.,  '■'■the  taking  all  reasonable  care  of  the  goods  delivered 
to  be  carried." 

The  policy  of  the  law  with  regard  to  common  carriers  of  goods  for 
hire,  and  the  reasons  assigned  for  it  by  Lord  Holt  and  Chief  Justice 
Best,  appear  to  have  no  application  to  the  case  of  carriers  of  passengers 
for  hire ;  and  hence  by  one  writer  on  the  subject  it  has  been  stated  that 
"  a  stage-coach  owner  who  carries  passengers  only  is  not,  properly  speak- 
ing, a  common  carrier ;  he  does  not  warrant  the  safety  of  the  passengers 
at  all  events,  but  only  that,  so  far  as  human  care  and  foresight  will  go, 
their  safe  conveyance  will  be  provided  for."  ^ 

We  have,  however,  seen  that  his  liability,  like  that  of  the  carrier  of 
goods,  arises  out  of  the  duty  implied  by  law,  and  that  the  declaration 
may  be  either  in  case  for  the  breach  of  such  duty,  or  on  the  contract 
springing  from  it,  as  was  said  by  Holroyd,  J.,  in  the  case  of  A7isell  v. 
Waterhorise : ^  "It  seems  to  me,  therefore,  that  although  the  law  will 
raise  a  contract  with  a  common  carrier  to  be  answerable  for  the  careful 
conveyance  of  his  passenger,  nevertheless  he  may  be  charged  in  an 
action  upon  the  case  for  a  breach  of  his  duty."  Does,  then,  the  law,  in 
the  case  of  a  carrier  of  passengei's  for  hire,  superadd  any  liability 
beyond  that  of  providing  for  "  the  careful  conveyance  of  his  x>assengers  "  9 

In  Crofts  V.  Waterhouse,'^  which  was  an  action  against  a  stage-coach 
proprietor  by  a  passenger  injured  by  the  overset  of  the  coach,  Best,  C. 
J.,  said:  "This  action  cannot  be  maintained  unless  negligence  be 
proved.  »  *  *  xhe  coachman  must  have  competent  skill,  and 
must  use  that  skill  with  diligence ;  he  must  be  well  acquainted  with  the 
road  he  undertakes  to  drive :  he  must  be  provided  with  steady  horses, 
a  coach  and  harness  of  sufficient  strength  and  properly  made,  and  also 


>  story  on  Bail.,  §  491.  «  6  Mau.  &  Sel.  393. 

»  Smith's  Merc.  Law  (7th  eel.),  282.  ■•  3  Bing.  319,  321. 


134  LIABILITY    OF    THE    CARKIEK    FOR    NEGLIGENCE. 

Readliead  v.  Midland  Railway  Company. 

with  lights  by  night.  If  there  be  the  least  failure  in  any  one  of  these 
things,  the  duty  of  the  coach  proprietors  is  not  fulfilled,  and  they  are 
answerable  for  any  injury  or  damage  that  happens.  But  with  all  these 
things,  and  when  every  thing  has  been  done  that  human  prudence  can 
suggest  for  the  security  of  the  passengers,  an  accident  may  happen. 
*  *  *  If,  having  exerted  proper  skill  and  care,  he  from  accident 
gets  off  the  road,  the  proprietors  are  not  answerable  for  what  happens 
from  his  doing  so."  And  Park,  J.,  in  the  same  case,  said:  "  A  carrier 
of  goods  is  liable  in  all  events  except  the  act  of  God  or  the  king's 
enemies.  A  carrier  of  passengers  is  only  liable  for  negligence."  So, 
in  Aston  y.  Heaven.,^  it  was  contended  that  coach-owners  were  liable  in 
all  cases  except  where  the  injury  happens  from  the  act  of  God  or  the 
*  king's  enemies;  but  Etre,  C.  J.,  held  that  cases  of  loss  of  goods  by 
carriers  were  totally  unlike  the  case  before  him.  In  those  cases  the 
parties  are  protected,  but  as  against  carriers  of  persons,  the  action 
stands  on  the  ground  of  negligence  alone.  In  Christie  v.  Griggs,^  in 
which  the  accident  arose  from  the  breaking  of  an  axletree.  Sir  James 
Mansfield  said:  "If  the  axletree  was  sound  as  far  as  the  human  eye 
could  discover,  the  defendant  was  not  liable.  There  was  a  difference 
between  a  contract  to  carry  goods  and  a  contract  to  carry  passengers. 
For  the  goods  the  carrier  was  answerable  at  all  events ;  but  he  did  not 
warrant  the  safety  of  passengers.  His  undertaking  as  to  them  went  no 
further  than  this,  that,  as  far  as  human  care  and  foresight  could  go,  he 
would  provide  for  their  safe  conveyance.  Therefore,  if  the  breaking 
down  of  the  coach  was  purely  accidental,  the  plaintiff  had  no  remedy 
for  the  misfortune  he  had  encountered." 

Thus  we  see  that  the  test  in  case  of  a  carrier  of  passengers  is,  has 
he,  "  as  far  as  human  foresight  can  go,  provided  for  their  safe  con- 
veyance "  ?  Of  course  this  includes  care  and  foresight  in  the  making 
and  procuring,  as  well  as  in  using,  the  carriage. 

In  the  case  of  Grote  v.  Chester  and  Holyhead  Railway  Company,'^ 
where  Sharp  v.  Grey,"^  to  which  I  shall  presently  refer,  was  cited  for 
the  opinion  of  Alderson,  J.,  that  "a  coach  proprietor  is  liable  for  all 
defects  in  his  vehicle,  which  can  be  seen  at  the  time  of  construction,  as 
well  as  for  such  as  may  exist  afterwards  and  be  discovered  on  investiga- 
tion," Parke,  B.,^  remarked:  "In  that  case  the  coach  proprietor  is 
liable  for  an  accident  which  arises  from  an  imperfection  in  the  vehicle, 

1  2  Esp.  633.                      *  2  Gamp.  81.  that  of  Sir  James  Allan  Park,  a  justice  of 

'  2  Excb.  255.  the  Court  of   Common  Pleas,  and  not  Sir 

♦  9  Bing.  457.  James  Parke,  a  baron  of  the  Court  of  Ex- 

6  [Mr.  Justice  Mellor  is  in  error  at  this  chequer,  afterwards  elevated  to  the  peerage 

point.     The  language  which  he  quotes  is  under  the  title  of  Wenslej'dale. — Ed.] 


LATENT  DEFECTS  IN  HIS  VEHICLE.  135 

English  Court  of  Queen's  Bench. 

although  he  has  emploj^ed  a  clever  and  competent  coachmaker."  Lord 
Wknsletdale,  by  that  obsei-vation,  merely  intended  to  express  that  a 
coach  proprietor  could  not  shelter  himself  from  the  consequences  of 
using  an  unsafe  coach  by  the  fact  that  he  had  employed  a  competent 
coachmaker  to  make  it;  which  differs  materially  from  implying  a 
warranty  against  a  defect  which  no  amount  of  care  or  skill  could  dis- 
cover. 

The  case  of  Burns  v.  Cork  and  Bandon  Railway  Company  *  comes  the 
nearest  in  its  facts  to  the  present.  In  that  case,  in  answer  to  an  action 
for  not  carrying  a  passenger  safely,  it  was  specially  pleaded,  in  sub- 
stance, that,  whilst  he  was  being  carried  in  a  carriage  on  the  defendants' 
railway,  a  fracture  occurred  in  a  crank-pin  in  one  of  the  leading  wheels 
of  the  locomotive  engine,  which  was  occasioned  by  an  original  defect  in 
the  material  and  construction  of  such  crank-pin,  which  defect,  before 
the  fracture  occurred,  was  not  capable  of  being  detected  by  the  defend- 
ants upon  due  or  proper  examination  or  observation,  and  that  the  crank 
was  purchased  with  the  locomotive  engine,  in  due  course  of  business, 
from  competent  manufacturers,  and  was  not  made  by  the  defendants, 
and  that  before  the  commencement  of  the  journey  the  defendants  duly 
examined  the  said  engine  and  crank-pin,  and  had  not  any  notice  of  the 
defect  in  the  same.  To  this  plea  the  plaintiff  demurred ;  and  Chief 
Baron  Pigot,  in  delivering  the  opinion  of  the  court,  stated  the  question 
to  be  whether,  taking  all  the  averments  in  the  plea  together,  the  defend- 
ants had  stated  facts  which  exempted  them  from  liability  for  the  breach 
of  contract  admitted  by  the  plea.  He  then  proceeded:  "I  am  of 
opinion  they  have  not,  according  to  the  existing  state  of  the  authorities. 
Although  a  carrier  of  passengers  does  not  warrant  the  safety  or  the  due 
arrival  of  his  passengers,  yet  I  consider  that  he  must  be  considered  as 
warranting  that  the  vehicle  in  which  he  conveys  them  is,  at  the  time  of 
the  commencement  of  the  journey,  free  from  all  defects,  at  least  as  far 
as  human  care  and  foresight  can  provide,  and  perfectly  roadworth3\" 
He  then  refers  to  Christie  v.  Griggs,^  Sharp  v.  Grey,^  and  Grate  v.  Ches- 
ter and  Holyhead  Railway  Company,'^  and  proceeds  as  follows:  "But, 
applying  Sir  J.  Mansfield's  test,  have  they  shown  in  their  plea  that,  as 
far  as  human  care  and  foresight  could  go,  they  provided  for  the  safety 
of  their  passengers?  I  think  they  have  not.  Their  plea  does  not  con- 
tain any  averment  as  to  the  care  and  skill  applied  to  the  manufacture  of 
the  engine,  or  as  to  the  care  or  skill  exercised  by  them  in  the  selection 
or  inspection  of  it.     All  the  averments  in  their  pleas  are  quite  consistent 

1  Irish  Rep.  13  C.  L.  543.  «  2  Camp.  79.  »  9  Bing.  457.  *  2  Exch.  251. 


136  LIABILITY    OF    THE    CARRIER    FOR   NEGLIGENCE. 

Readhead  v.  Midland  Railway  Company. 

with  gross  and  culpable  carelessness  on  the  part  of  the  manufacturers, 
and  with  gross  and  culpable  negligence  on  their  part  in  the  purchase  of 
it  from  the  manufacturers.  If  they  had  been  the  manufacturers  of  the 
engine,  they  would  have  been  bound  to  aver  and  prove  that  due  care 
and  skill  had  been  exercised  in  the  process  of  its  manufacture.  Are 
they  to  be  I'elieved  from  legal  liability  because  they  allege  that  they  have 
purchased  it  from  a  competent  manufacturer?  I  think  that  would  be  a 
distinction  dangerous  to  the  public,  and  that,  as  Alderson,  J.,  says, 
railway  companies  might  buy  ill-constructed  or  unsafe  vehicles  and  the 
public  be  without  remedy." 

Now,  although  one  or  two  ambiguous  phrases  are  used  by  the  Chief 
Baron  in  his  judgment,  arising  out  of  some  error  in  the  collocation  of 
the  words,  he  never  intended,  as  it  appears  to  me,  to  assert  that  there 
existed  an  implied  warranty  against  latent  defects  which  no  amount  of 
skill  or  care  could  have  discovered ;  otherwise  I  should  have  expected 
it  to  have  been  at  once  so  expressed,  which  would  have  rendered  further 
reasons  unnecessary.  I  think  that  the  course  of  the  argument  and  of 
the  judgment  show  that  the  disqussion  really  turned  upon  the  question 
of  negligence,  and  not  of  warranty. 

The  authorities  to  which  I  have  referred  sufficiently  illustrate  the 
distinction  between  the  liability  of  carriers  of  goods  and  that  of  carriers 
of  passengers.  The  liability  of  the  former  is  that  of  an  insurer, 
whilst  that  of  the  latter  is  only  for  negligence.  It  further  appears 
from  these  cases  that  the  negligence  which  renders  a  carrier  of  pas- 
sengers liable  is  something  which  might  have  been  avoided  by  the 
exercise  of  care,  skill,  or  foresight,  and  that  an  accident  which  results 
from  some  cause  which  no  amount  of  care,  skill,  or  foresight  could  have 
discovered  cannot  be  said  to  be  the  result  of  negligence  in  the  carrier. 

In  the  case  of  carriers  by  water  the  same  distinctions  hold,  so  far  as 
I  am  aware.  In  Lyon  v.  Mells,^  Lord  Ellenborough  said:  "In  every 
contract  for  the  carriage  of  goods,  between  a  person  holding  himself 
forth  as  the  owner  of  a  lighter  or  vessel  ready  to  carry  goods  for  hire, 
and  the  person  putting  goods  on  board,  or  employing  his  vessel  or 
lighter  for  that  purpose,  it  is  a  term  of  the  contract  on  the  part  of  the 
carrier  or  lighterman,  implied  by  law,  that  his  vessel  is  tight,  and  fit  for 
the  purpose  or  employment  for  which  he  offers  and  holds  it  forth  to  the 
public ;  it  is  the  very  foundation  and  immediate  substratum  of  the 
contract  that  it  is  so.  The  law  presumes  a  promise  to  that  effect, 
without  actual  proof,  and  every  reason  of  sound  policy  and  public  con- 

1  6  East,  428, 437. 


LATENT    DEFECTS    IN    HIS    VEHICLE.  137 

English  Court  of  Queen's  Bench. 

venience  requires  it  should  be  so."  There  are  many  authorities  to  the 
same  effect,  which  it  is  not  necessary  to  cite. 

If  it  be  said  that  it  is  a  strange  thing  that  a  warrant}'^  of  seaworthiness 
should  be  implied  by  law  in  the  case  of  goods,  and  not  of  passengers,  I 
can  only  answer  that  in  case  of  goods  the  warranty  of  seaworthiness  is 
incidental  to  the  liability  of  the  carrier  as  an  insurer.  In  Coggs  v.  Ber- 
nard,^ Lord  Holt  makes  no  distinction  in  this  respect  between  carriers 
by  land  and  carriers  by  water,  and  many  of  the  reasons  stated  by  him 
and  Best,  C.  J.,^  to  be  the  foundation  of  the  liability  of  a  carrier  of 
goods  by  land  apply  with  equal  force  to  the  carrier  of  goods  by  water ; 
and  certainly  in  no  case,  so  far  as  I  am  aware,  has  there  been  a  sugges- 
tion that  the  foundation  of  the  liability  of  a  carrier  of  passengers  by 
water  depends  upon  other  considerations  than  those  which  regulate  the 
liability  of  carriers  of  passengers  by  land. 

In  the  present  case  the  direction  of  my  brother  Lush  to  the  jury 
appears  to  me  to  have  been  unexceptionable,  and  in  strict  conformity 
with  the  cases  above  referred  to.  The  fracture  of  the  wheel-tire,  by 
itself,  and  unexplained,  might  have  been  sufficient  to  raise  a  presump- 
tion of  negligence  against  the  defendants. ^  But  upon  the  direction  of 
my  brother  Lush,  when  the  explanatory  evidence  had  been  given,  it 
must  be  taken  to  have  been  in  fact  found  by  the  jury  that  the  break- 
ing of  the  wheel- tire  was  due  to  a  hidden  defect  which  no  amount  of  care 
or  skill  could  have  discovered.,  either  in  the  manufacture,  purchase.,  or  use. 
I  was  at  one  time  in  doubt  whether  the  principles  applied  and  explained 
in  the  case  of  Brown  v.  Edgington,^  said  by  Parke,  B.,  in  Sutton  v. 
Temple,^  "to  be  long-settled  law,"  did  not  govern  this  case;  but  I  am 
now  satisfied  that  they  do  not.  In  that  case,  although  the  "  scienter y 
or  guilty  knowledge,"  as  it  was  termed,  was  negatived  by  the  jury, 
there  was  notliing  to  prove  that  the  insufficiency  of  the  rope  might  not 
have  been  discovered  upon  a  careful  examination ;  and  I  can  find 
nothing  to  show  that  the  doctrine  now  contended  for  was  in  the  minds 
of  the  judges  who  decided  it.  If  the  liability  of  a  carrier  of  passengers 
for  hire  springs  from  the  custom  of  the  realm,  or  from  an  actual  con- 
tract made,  why  are  we  to  imply  a  warranty  as  to  the  absolute  .efficiency 
of  the  carriage,  when  we  do  not  imply  any  such  warranty  with  regard  to 
the  other  incidents  of  the  journey?  It  would  appear  to  be  quite  as 
reasonable  to  imply  a  warranty  against  accidents  as  against  a  hidden 

>  2  Ld.  Raym.  909,  918.  747;  Bird  v.  Great  Northern  E.  Co.,  28  L.  J. 

2  In  Riley  v.  Home,  5  Bing.  220.  (Excli.)  3. 
•'  Skinner  v.  London  etc.  R .  Co.,  5  Exch.  ^  2  Man.  &  G.  279. 

787;  Carpue  v.  London  etc.  R.  Co.,  5  Q.  B.  &  12  Mee.  &  W.  64. 


138  LIABILITY    or    THE    CARIJIEK    FOR    NEGLIGEXCE. 

Keadhead  v.  Midland  Railway  Company. 

defect  which  no  amount  of  skill  or  care  could  discover.  I  think  that  it 
would  be  extremely  dangerous,  and  somewhat  inconsistent,  to  extend 
the  doctrine  of  implied  warranty  beyond  the  jyossible  means  of  the  alleged 
warrantor  to  guard  against  the  defects  to  which  Jiis  warranty  is  supposed 
to  extend. 

The  cases  cited  in  support  of  the  plaintiff's  right  to  recover  do  not, 
I  think,  when  examined,  go  the  length  attributed  to  them  ;  and  they  are 
neither  so  consistent  nor  precise  as  to  conclude  us  from  exercising  our 
own  judgment  upon  the  facts  before  us;  and,  notwithstanding  some 
expressions  attributed  to  Lord  Ellenborough,  and  Best,  C.  J.,  I  cannot 
but  think  that  those  learned  judges  had  not  present  in  their  minds  the 
idea  that  there  existed  in  the  case  of  carriers  of  passengers  any  abso- 
lute warranty  of  roadworthiness.  In  Israel  v.  Clark.}  where  the  injury 
arose  from  the  breaking  of  an  axletree,  the  expressions  used  by  Lord 
Ellenborough  are  y&vy  wide,  viz.,  that  "  he  should  expect  a  clear  land- 
worthiness  in  the  carriage  itself  to  be  established."  Still,  it  is  by  no 
means  certain  that  he  had  in  view  a  case  of  latent  defect  which  no  skill 
or  care  could  discover.  No  opinion  was  expressed  showing  whether  he 
considered  that  the  cause  of  action  rested  upon  negligence  or  upon  the 
doctrine  of  implied  warranty. 

In  Bremner  v.  Williams,^  Best,  C.  J.,  is  reported  to  have  said  "  that 
every  coach  proprietor  warrants  that  his  stage-coach  is  equal  to  the 
journey  it  undertakes,"  and  "  it  is  his  duty  to  examine  it  previous  to  the 
commencement  of  every  journey ."  The  latter  words  show  to  what  mat- 
ters he  supposed  the  warranty  to  extend  ;  and  I  think  that  it  is  only  fair, 
considering  the  opinions  already  cited  from  other  cases,  in  which,  with 
more  consideration,  he  had  treated  this  subject,  to  assume  that  he  did 
not  refer  to  latent  defects  which  could  not  be  discovered  on  examination. 

The  decision  which  was  most  discussed  before  us  is  the  case  of  Sharp 
V.  Grey,^  but  I  am  bound  to  say  that,  although  the  opinions  expressed  by 
Gaselee,  J.,  and  Bosanquet,  J.,  in  that  case  are  apparently  in  antago- 
nism to  the  direction  given  by  my  brother  Lush,  it  is  not  very  easy  to  see 
that  the  judges  who  decided  it  had  in  their  minds  a  case  of  latent  defect 
not  discoverable  by  any  amount  of  care  or  skill,  or  that  thej'  were 
unanimous  in  laj'ing  down  any  clear  or  precise  rule  of  law  which  ought 
to  govern  us  in  this  case  ;  and  it  is  to  be  observed  that  the  Chief  Justice. 
TiNDAL,  left  the  case  to  the  jury  as  a  question  of  fact,  although  in  some- 
what loose  and  general  terms,  viz.,  "whether  there  had  been  on  the 
part  of  the  defendant  that  degree  of  vigilance  which  was  required  b}'  his 

«  4  Esp.  259.  «  1  Car.  &  P.  414.  »  9  Biug.  457. 


LATENT  DEFECTS  IN  HIS  VEHICLE.  139 

English  Court  of  Queen's  Bench. 

engagement  to  carry  the  plaintiff  safely."  And  Park,  J.,  is  reported 
to  have  said  "  it  was  a  question  of  fact  for  the  jury."  And  Alderson, 
J.,  limits  the  extent  of  any  implied  warranty  against  defects  to  those 
"which  could  be  seen  at  the  time  of  construction."  He  adds:  "  And 
if  the  defendant  were  not  responsible,  a  coach  proprietor  might  buy  ill- 
constructed  or  unsafe  vehicles  and  his  passengers  be  without  remedy." 

There  are  several  modern  cases  not  referred  to  on  the  argument, 
which  show  that  the  judges  who  tried  them  considered  the  action 
against  carriers  of  passengers  for  hire  to  be  founded  on  negligence. 
In  Stokes  v.  Eastern  Counties  Railway  Company,^  Chief  Justice  Cock- 
burn  thus  expressed  himself:  "  You  are  entitled  to  expect  at  the  hands 
of  a  railway  company  all  that  skill,  care,  and  prudence  can  do  to  pro- 
tect the  public  against  danger  and  accidents,  but  you  must  carry  that 
principle  into  application  as  reasonable  men.  *  *  *  if  you  are  of 
opinion  that  the  flaw  or  crack  had  become  visible  prior  to  the  accident ; 
that  upon  careful  examination  —  not  with  the  aid  of  scientific  authorities 
and  scientific  instruments,  but  on  an  ordinary^  reasonably  proper,  and 
careful  examination,  such  as  all  feel  ought  to  be  made  before  the  engines 
are  used,  on  which  the  safely  of  a  whole  train  might  depend — this 
flaw  might  have  been  discovered ;  and  that  either  the  examination  did 
not  take  place,  or  if  it  did,  and  the  flaw  was  discovered,  but  the  man, 
with  careless  disregard  of  his  own  safety  and  of  others  whose  lives  and 
limbs  might  be  involved,  treat(  1  all  this  with  supine  and  reckless  indif- 
ference, then  undoubtedly  there  is  negligence  established,  for  which  the 
company  are  and  ought  to  be  responsible." 

That  case  is  important,  because  the  verdict  was  for  the  defendants, 
and  if  the  doctrine  now  contended  for  by  the  plaintiff  be  the  correct 
exposition  of  the  law,  the  verdict  in  that  case,  if  questioned,  must  have 
been  set  aside. 

Again,  in  Ford  v.  London  and  South- We  stern  Railway  Company,^ 
Cliief  Justice  Erle,  in  summing  up  the  case  to  the  jury,  said:  "The 
action  is  grounded  on  neghgence.  The  railway  company  is  bound  to 
take  reasonable  care,  to  use  the  best  precautions  in  known  practical  use 
for  securing  the  safety  and  convenience  of  the  passengers.  "^ 

In  this  state  of  the  authorities  in  our  own  courts  and  in  Ireland,  we 
are  much  assisted  in  arriving  at  a  conclusion  by  several  cases  decided  in 
the  courts  of  the  United  States,  cited  in  a  note  to  the  seventh  edition  of 
Story  on  Bailments,  p.  565.     In  Ingalls  v.  Bills,*  the  late  Mr.  Justice 

'  2  Fost.  &  Fin.  G91,  69?,,  094.  2  Fost.  &  Fin.  621,  per  Chief  Justice  Cock- 

'  /d.  732.  burn,  to  the  same  effect. 

3  See  also  Pym  v.  Great  Northern  R.  Co.,  <  9  Mute.  1,  1.5;  ante,  p.  123. 


140  LIABILITY    OF    THE    CARRIER   FOR    NEGLIGENCE. 

Readhead  v.  Midland  Railway  Company. 

Hubbard,  in  a  very  able  judgment,  in  whicli  the  English  and  American 
authorities  are  reviewed,  states  it  to  be  the  conclusion  of  the  court, 
"  That  carriers  of  passengers  for  hire  are  bound  to  use  the  utmost  care 
and  diligence  in  the  providing  of  safe,  sufficient,  and  suitable  coaches, 
harnesses,  horses,  and  coachmen,  in  order  to  prevent  those  injuries 
which  human  care  and  foresight  can  guard  against ;  and  if  an  accident 
happens  from  a  defect  in  the  coach,  wliich  might  have  been  discovered 
and  remedied  upon  the  most  careful  and  thorough  examination  of  it, 
such  accident  must  be  ascribed  to  negUgence,  for  which  the  owner  is 
liable  in  case  of  injury  to  a  passenger  happening  by  reason  of  such 
accident.  On  the  other  hand,  where  the  accident  arises  from  a  hidden 
and  internal  defect,  which  a  careful  and  thorough  examination  would 
not  disclose,  and  which  could  not  be  guarded  against  by  the  exercise 
of  a  sound  judgment  and  the  most  vigilant  oversight,  then  the  proprietor 
is  not  liable  for  the  injury,  but  the  misfortune  must  be  borne  by  the  suf- 
ferer as  one  of  that  class  of  injuries  for  which  the  law  can  afford  no 
redress  in  the  form  of  a  pecuniary  recompense."  This  extract  from  the 
judgment  of  Mr.  Justice  Hubbard,  in  my  opinion,  trul}'  expresses  the 
rule  of  law  applicable  to  the  present  case,  and  is  in  strict  conformity 
with  my  brother  Lush's  direction  to  the  jury ;  and  were  it  not  for  the 
opinion  of  my  brother  Blackburn  to  the  contrary,  I  should  have  con- 
sidered that  it  was  supported  by  the  loeight  of  English  authority. 

As  the  majority  of  the  court  are  in  favor  of  the  defendants,  and 
think  my  brother  Lush's  direction  right,  the  rule  obtained  by  the 
plaintiff  will  be  discharged. 

Blackburn,  J.  — Tliis  was  an  action  brought  by  a  passenger  on  the 
defendants'  railway,  to  recover  damages  for  an  injury  he  had  received, 
owing  to  the  breaking  down  of  the  carriage  in  which  he  was  travelling. 

On  the  trial  before  my  brother  Lush,  it  appeared  that  the  carriage 
was  one  belonging  to  the  London  and  North- Western  Railway  Compan}-, 
which  had  been  for  some  time  in  use  by  them,  and  had  come  into  the 
possession  of  the  defendants  in  the  ordinary  course  of  traffic,  and  was 
(according  to  the  ordinary  arrangements  between  the  different  railway 
companies)  used  b\"  the  defendants  till  they  could  return  it. 

Evidence  was  given  that  when  the  carriage  was  put  into  the  train  by 
the  defendants  it  was  to  all  outward  appearance  reasonably  sufflcie)it 
for  the  journey,  the  tire  of  the  wheel  being  of  proper  thickness  and 
apparently  of  sufficient  strength,  but  that,  in  fact,  there  had  been  an 
air-bubble  in  the  welding,  which  rendered  the  tire  much  weaker  than  it 
appeared ;  so  that,  in  fact,  it  was  not  reasonably  fit  for  the  journey, 
and  that  the  breakin2;  of  this  tire  occasioned  the  accident.     Evidence 


LATENT    DEFECTS    IN    HIS    VEHICLE.  141 

English  Court  of  Queen's  Bench. 

was  given  that  this  defect  was  one  which  could  not  be  detected  by 
inspection,  nor  by  any  of  the  usual  tests,  as  it  would  ring  to  the  ham- 
mer as  if  perfectly  welded ;  and  that  there  was  no  neglect  on  the  part 
of  the  defendants  or  their  servants,  who  took  every  reasonable  precau- 
tion in  examining  the  carriage. 

My  brother  Lush  left  the  case  to  the  jury,  telling  them  that  if  the 
accident  was  occasioned  by  any  neglect  on  the  part  of  the  defendants, 
they  should  find  for  the  plaintiff,  but  that  if  it  was  occasioned  by  a 
latent  defect  in  the  wheel,  such  that  no  care  or  skill  on  the  part  of 
the  defendants  could  detect  it,  the  verdict  should  be  for  the  defend- 
ants. The  jury  found  for  the  defendants  ;  and  it  is  not  disputed  that, 
if  the  direction  was  right,  their  verdict  was  justified  by  the  evidence. 

A  rule  nisi  was  obtained  for  a  new  trial,  on  the  ground  of  misdirec- 
tion, as  it  was  contended  that  the  defendants,  as  carriers  of  passengers, 
were  bound  at  their  peril  to  supply  a  carriage  that  really  was  reasonably 
fit  for  the  journey,  and  that  it  was  not  enough  that  they  made  every 
reasonable  effort  to  secure  that  it  was  so ;  in  other  words,  that  the  obli- 
gation of  the  carrier  to  the  passenger  was  equivalent  to  a  warranty 
of  the  reasonable  sufficiency  of  the  vehicle  he  supplies.  Cause  was 
shown  in  the  Sittings  after  Trinity  Term,  1866,  before  my  brothers 
Mellor,  Lush,  and  myself,  when  the  court  took  time  to  consider. 

This  is  a  question  of  very  great  nicety  and  importance ;  but,  after 
some  consideration  and  doubt,  I  have  come  to  the  conclusion  that 
on  the  balance  of  English  authority,  and  I  think,  upon  the  whole,  in 
principle  and  by  analogy  to  other  cases,  there  is  a  duty  on  the  carrier 
to  the  extent  that  he  is  bound  at  his  peril  to  supply  a  vehicle  in  fact 
reasonably  sufficient  for  the  purpose,  and  is  responsible  for  the  conse- 
quences of  his  failure  to  do  so,  though  occasioned  by  a  latent  defect ; 
and  therefore  that  the  direction  was  wrong,  and  that  there  should  be 
a  new  trial.  I  have  come  to  this  conclusion  with  much  doubt  and  hesi- 
tation ;  and  as  my  two  brothers  are  of  different  opinion,  I  need  not  say 
that  I  am  very  far  from  being  confident  that  I  am  not  wrong ;  but  still 
I  think  it  best  to  state  the  reasons  why  I  differ  from  them.  I  quite 
agree  that  the  carrier  of  passengers  is  not,  like  the  carrier  of  goods,  an 
insurer,  who  undertakes  to  carry  safely  at  all  events  unless  prevented 
by  excepted  perils.  The  carrier  has  not  the  control  of  the  human 
beings  whom  he  carries  to  the  same  extent  as  he  has  the  control  of 
goods,  and  therefore  it  would  be  unjust  to  impose  on  him  the  same 
responsibility  for  their  safe  conveyance.  In  order,  therefore,  to  render 
the  carrier  of  passengers  liable  for  an  accident,  it  is  necessary  to  allege 
and  prove  that  the  accident  arose  from  some  neglect  of  duty  on  the 


142  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 

Eeadhead  v.  Midland  Railway  Company. 

carrier's  part;  but  if  the  obligation  on  tlie  part  of  tiie  carrier  to  provide 
a  vehicle  reasonably  fit  for  the  journey  is  absolute,  a  failure  on  his  part 
to  fulfil  that  obligation  is  quite  enough  to  make  him  liable  for  all  the 
consequences.  And  I  own  I  see  nothing  to  diminish  the  obligation  to 
provide  a  reasonably  safe  vehicle,  in  the  fact  that  it  is  to  be  provided 
for  the  safety  of  life  and  limb  and  not  merely  of  property. 

The  carrier  supplies  and  selects  the  carriage  for  the  purpose  of  con- 
ve3Mng  the  passenger,  who  is  obliged  to  trust  entirely  to  the  carrier; 
the  passenger  having  no  means  of  examining  the  carriage,  and  no  voice 
in  the  selection  of  it.  Now,  it  has  been  decided  that  one  who  contracts 
to  supply  articles  for  a  particular  purpose,  does  impliedly  warrant  that 
the  articles  he  supplies  are  fit  for  that  purpose.^  The  principle  of  that 
case,  as  I  understand  it,  is  that  expressed  by  Maule,  J.,  who  says  that 
the  defendant,  having  accepted  an  order  for  a  rope  for  a  particular  pur- 
pose, which  rope  he  was  to  select  and  procure,  did  undertake  to  furnish 
one  fit  for  that  purpose,  and  was  therefore  liable  as  on  a  lireach  of  his- 
contract  if  he  furnished  one  unfit  for  that  purpose,  though  that  unfit- 
ness arose  from  a  latent  defect ;  and  this  principle  would  seem  to  apply 
to  the  carrier  of  passengers  who  supplies  a  vehicle.  On  the  same  prin- 
ciple, I  think,  it  is  that  a  ship-owner  warrants  to  the  person  who  ships 
goods  that  his  vessel  is  seaworth3\  Lord  Tenterden.  in  Abbott  on 
Shipping,"  states  the  law  thus:  "The  first  duty  is  to  provide  a  vessel 
tight  and  staunch,  and  furnished  with  all  tackle  and  apparel  necessary 
for  the  intended  voyage.  For  if  the  merchant  suffer  loss  or  damage  by 
reason  of  any  insufficiency  of  these  particulars  at  the  outset  of  the 
voyage,  he  will  be  entitled  to  a  recompense.  *  *  *  An  insufflcienc3^ 
in  the  furniture  of  the  ship  cannot  easily  be  unknown  to  the  master  or 
owner,  but  in  the  body  of  the  vessel  there  may  be  latent  defects 
unknown  to  both.  The  French  ordinance  directs  that  if  the  merchant 
can  prove  that  the  vessel,  at  the  time  of  sailing,  was  incapable  of 
performing  the  voyage,  the  master  shall  lose  his  freight  and  pay  the 
merchant  his  damages  and  interest.^  Valin,  in  his  commentary  on  this 
article,  cites  an  observation  of  Weytsin:^  'That  the  punishment  in 
this  case  ought  not  to  be  thought  too  severe,  because  the  master,  b}'  the 
nature  of  the  contract  of  affreightment,  is  necessarily  held  to  warrant 
that  the  ship  is  good,  and  perfectly  in  a  condition  to  perform  the  vo3'age 
in  question,  under  the  penalty  of  all  expenses,  damages,  and  interest.' 
And  he  himself  adds  that  this  is  so,  although  before  its  departure  the 
ship  may  have  been  visited,  according  to   the  practice  in  France,  and 

1  Brown  v.  Edgington,  2  Mau.  &  G.  279, 293.  «  Oni.  de  la  Marine,  liv.  iii.,  tit.  3,  art.  12. 

2  5th  ed.,  p.  2iS ;  10th  od.,  by  Shee,  p.  254.  ••  Traite  des  Avaries,  10. 


LATENT    DEFECTS    IN    TIIS    VEHICLE.  143 

English  Court  of  Queen's  Bench. 

reported  sufficient;  because  on  the  visit  the  exterior  parts  only  of  the 
vessel  are  surveyed,  so  that  secret  faults  cannot  be  discovered,  'for 
which  by  consequence,'  says  he,  'the  owner  or  master  remains  always 
responsible,  and  this  more  justly  because  he  cannot  be  ignorant  of  the 
bad  state  of  the  ship;  but  even  if  he  be  ignorant,  he  must  still  answer, 
being  necessarily  bound  to  furnish  a  ship  good  and  capable  of  the 
voyage.^  "  Lord  Tenterden  then  notices  the  opinion  of  Pothier,^  that 
in  such  a  case  the  owner  should  not  be  answerable  for  damages  occa- 
sioned bj'  a  defect  which  they  did  not  nor  could  know,  though  he 
agreed  that  they  should  lose  their  freight;  and  Lord  Tenterden 
observes  in  a  note  that  this  opinion  of  Pothier  is  not  quite  consistent 
with  his  own  principles,  laid  down  in  the  Traite  de  Louge.^  However 
this  may  be  in  the  old  French  law  or  the  civil  law,  it  is,  I  think,  clear 
that,  according  to  English  law,  either  there  is  a  breach  of  warranty,  in 
which  case  the  owner  is  responsible  for  all  the  consequences,  or  there  is 
not,  in  which  case  there  is  no  ground  for  depriving  him  of  his  freight. 
And  I  think  that  there  is  ample  authority,  in  addition  to  what  I  have 
cited  from  Abbott  on  Shipping,  for  saying  that,  by  English  law,  such 
a  warranty  is  implied  where  the  carriage  is  by  water. 

In  Lyon  v.  Mells,^  Lord  Ellenborough,  in  delivering  the  considered 
judgment  of  the  court,  says:  "In  every  contract  for  the  carriage  of 
goods  between  a  person  holding  himself  forth  as  the  owner  of  a  lighter 
or  vessel  ready  to  carry  goods  for  hire,  and  the  person  putting  goods  on 
board,  or  employing  his  vessel  or  lighter  for  that  purpose,  it  is  a  term 
of  the  contract  on  the  part  of  the  carrier  or  lighterman,  implied  by  law, 
that  his  vessel  is  tight,  and  fit  for  the  purpose  or  employment  for  which 
he  offers  and  holds  it  forth  to  the  public ;  it  is  the  very  foundation  and 
immediate  substratum  of  the  contract  that  it  is  so.  The  law  presumes 
a  promise  to  that  effect  on  the  part  of  the  carrier,  without  any  actual 
proof,  and  every  reason  of  sound  policy  and  public  convenience  requires 
that  it  should  be  so.  The  declaration  here  states  such  a  promise  to 
have  been  made  by  the  defendant,  and  it  is  proved  by  proving  tlie 
nature  of  his  employment ;  or,  in  other  words,  the  law  in  such  a  case, 
without  proof,  implies  it." 

In  Gibson  v.  Small,*  in  explaining  the  reason  why,  in  a  voyage  policy 
of  insurance,  there  was  an  implied  condition  that  the  ship  was  seaworthy, 
as  much  when  the  insurance  is  on  goods  as  when  on  the  vessel,  Parke, 
B.,  says:  The  ship-owner  "contracts  with  every  shipper  of  goods  that 
he  will  do  so  "  (i.e.,  make  the  ship  seaworthy).     "  The  shipper  of  goods 

1  Trait<5  de  Charte-partie,  num.  30.  '  6  East,  428,437. 

2  Part  II.,  chap.  1,  §  4,  par.  2.  ••  4  II.  L.  Cas.  404. 


144  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 

Eeadhead  v.  Midland  Eaihvay  Company. 

has  a  right  to  expect  a  seaworth}'  ship,  and  may  sue  the  ship-owner  if  it 
is  not.  Hence,  the  usual  course  being  that  the  assured  can  and  may 
secure  the  seaworthiness  of  the  ship,  either  directly  if  he  is  the  owner, 
or  indirectly  if  he  is  the  shipper,  it  is  by  no  means  unreasonable  to 
imply  such  a  contract  in  a  policy  on  a  ship  on  a  voyage,  and  so  the  law 
most  clearly  has  implied  it."  It  appears  from  this  that  this  most 
learned  judge  thought  it  clear  that  the  undertaking  of  the  ship-owner  to 
the  shipper  of  goods,  as  to  seaworthiness,  is  coextensive  with  the 
undertaiving  of  the  goods-owner  to  his  insurer. 

I  am  eertainl}'  not  aware  of  any  case  in  which  the  question  has  arisen 
whether  there  is  a  similar  warranty  between  a  ship-owner  and  a  passen- 
ger ;  but  it  seems  to  me  that  every  reason  that  can  be  urged  in  favor  of 
the  warranty  applies  as  much  to  the  one  case  as  to  the  other.  The  pas- 
senger trusts  to  the  ship-owner  to  select  a  proper  ship  as  much  as  the 
shipper  of  goods  does ;  and  all  those  circumstances  exist  which  induced 
Valin  (in  the  passage  cited  in  Abbott  on  Shipping)  to  say  that  the  ship- 
owner, from  the  nature  of  his  contract,  was  "necessarily  bound  to 
furnish  a  ship  good  and  sufficient  for  the  voyage  ;  "  or,  as  Lord  Ellen- 
BOR  UGH  says  in  Lyon  v.  Mells^^  "  that  his  promise  to  do  so  is  proved 
by  proving  the  nature  of  his  emplo3aiient. "  Indeed,  in  the  very  prob- 
able case  of  a  person  shipping  merchandise  by  the  same  vessel  in  which 
he  himself  takes  his  passage,  it  would  seem  rather  extraordinary  if  the 
law  were  to  hold  that,  as  far  as  the  goods  were  concerned,  there  was  an 
implied  undertaking  to  furnish  a  seaworthy-  ship,  but  as  regarded  the 
personal  safety  of  the  passenger  there  was  none.  It  is  true  that  the 
carrier  of  goods  is  an  insurer,  except  against  certain  excepted  perils, 
and  that  the  carrier  of  passengers  is  not ;  but  the  question  whether  the 
carrier  of  goods  is  bound  at  his  peril  to  supply  a  seaworthy  vessel  can 
only  arise  where  the  immediate  cause  of  the  loss  is  an  excepted  peril, 
or  where  for  some  other  reason  the  contract  to  insure  does  not  apply. 

Assuming,  then,  that  there  is  such  a  warranty  implied  where  the 
carriage  is  to  be  by  water,  is  there  any  difference  where  the  carriage 
is  by  land? 

The  principle  which  I  understand  to  be  laid  down  in  Brown  v. 
Edgington^  is  this,  that  where  one  party  to  a  contract  engages  to 
select  and  supply  an  article  for  a  particular  purpose,  and  the  other 
party  has  nothing  to  do  with  the  selection,  but  relies  entirely  upon  the 
party  who  supplies  it,  it  is  to  be  taken  as  part  of  the  contract  implied 
b}'  law,  that  the   supply    warrants    the   reasonable   sufficiency  of   the 

1  5  East,  437,  *  2  Man.  &  G.  279. 


LATENT  DEFECTS  IN  HIS  VEHICLE.  145 

English  Court  of  Queen's  Bench. 

article  for  that  purpose,  and  I  think  Lyon  v.  Mells  ^  lays  down  a  very 
similar  principle  as  generally  applicable,  though  the  particular  instance 
was  that  of  a  lighterman.  If  this  principle  be  a  general  one,  it  applies 
equally  to  the  case  of  the  ship-owner  supplying  a  ship,  and  the  carrier 
by  land  supplying  a  vehicle,  whether  it  is  supplied  for  the  carriage 
•of  goods  or  passengers.  In  Brass  v.  Maitland  ^  this  principle  was 
much  discussed.  I  think  the  effect  of  the  reasoning  of  the  judgment 
of  Lord  Campbell  and  Wig  htm  an,  J.,  shows  that,  in  their  opinion, 
this  is  a  general  principle  of  law ;  whilst  the  effect  of  the  judg- 
ment of  Crompton,  J.,  is  such  as  to  show  that  he  did  not  think  the 
principle  general,  and  was  not  inclined  to  carry  it  further  than  the 
decisions  had  already  gone.  My  respect  for  his  opinion  is  very  great, 
and  if  ever  the  question  whether  there  is  such  a  general  principle  of 
law  should  come  before  me  in  a  court  of  error,  I  should  endeavor  to 
consider  it  carefully  as  an  open  question,  without  being  too  much  biased 
by  my  present  impression  in  favor  of  it ;  but  sitting  here,  in  the  same 
court  in  which  that  case  was  decided,  I  am  bound  to  consider  the 
decision  of  the  majority  right,  and  to  act  upon  it  so  far  as  it  bears 
on  the  present  question. 

The  authorities  on  the  very  point  now  before  us  are  not  numerous. 
In  Israel  v.  Clark,^  Lord  Ellenborough  is  reported  to  have  said  that 
the  carriers  of  passengers  by  land  "  were  bound  by  law  to  provide  a 
sufficient  carriage  for  the  safe  conveyance  of  the  public  who  had  occa- 
sion to  travel  by  them  ;  at  all  events,  he  would  expect  a  clear  landworthi- 
ness  in  the  carriage  itself  to  be  established."  This  seems  to  show  that 
in  his  opinion  the  doctrine  which  in  Lyon  v.  Melts'^  was  laid  down  as 
to  the  persons  furnishing  lighters  for  the  conveyance  of  goods,  was 
applicable  to  tliose  furnishing  carriages  by  land  for  the  convej^ance  of 
passengers,  and  that  they  were  bound  at  their  peril  to  provide  vehicles 
in  fact  reasonably  sufficient  for  the  purpose.  And  in  Bremner  v.  Wil- 
liams,^  Best,  C.  J.,  is  reported  to  have  ruled  the  same  way.  These  are, 
it  is  true,  only  nisi  prius  decisions,  and  neither  reporter  has  such  a 
character  for  intelligence  and  accuracy  as  to  make  it  at  all  certain  that 
the  facts  are  correctly  stated  or  that  the  opinion  of  the  judge  was 
rightly  understood. 

On  the  other  hand,  in  Christie  v.  Griggs^^  Mansfield,  C.  J.,  told  the 
jury  that  "  if  the  axletree  was  sound,  as  far  as  human  eye  could  dis- 
cover, the  defendant  was  not  liable.     There  was  a  difference  between  a 

>  6  East,  428.  «  6  East,  428. 

»  6EI.&B1.470;  2GL.  J.  (Q.  B.)49.  »  1  Car.  &  P.  414. 

•  4  Esp.  259.  •  2  Cauip.  81,  post,  p.  181. 

to 


146  LIABILITY    OF    THE    CARRIER    FOR   NEGLIGENCE. 


Rearlhead  v.  Midland  Railway  Company. 

contract  to  carry  goods  and  a  contract  to  carry  passengers.  For  the 
goods  the  carrier  was  answerable  at  all  events.  But  he  did  not  warrant 
the  safety  of  the  passengers.  His  undertaking  as  to  them  went  no 
further  than  this :  that  as  far  as  human  care  and  foresight  could  go,  he 
would  provide  for  their  safe  conve3'ance.  Therefore,  if  the  breaking 
down  of  the  carriage  was  purely  accidental,  the  plaintiff  had  no  remedy 
for  the  misfortune  he  had  encountered."  We  may  depend  on  the  accu- 
racy of  this  reporter.  Mansfield,  C.  J. ,  here  does  not  very  accurately 
distinguish  between  the  possible  view  of  the  case  that  the  misfortune 
might  have  arisen  though  the  vehicle  was  reasonably  fit  for  the  journey, 
and  so  be  purely  accidental,  and  the  possible  view  that  the  accident,  and 
the  circumstances  attending  it,  showed  that  the  coach  could  not  in  fact 
be  reasonably  fit  for  the  journey ;  but,  on  the  whole,  I  think  it  must  be 
taken  that  he  thought  there  was  no  warranty  such  as  would  make  the 
coach  proprietor  liable  for  a  latent  defect  in  the  coach.  But  this  was 
only  an  opinion  at  nisi  prius. 

In  Sharp  v.  Grey,^  Tindal,  C.  J.,  is  stated,  in  the  report  in  Bingham,^ 
to  have  directed  the  jury  to  consider  whether  there  had  been  on  the  part 
of  the  defendant  that  degree  of  vigilance  which  was  required  by  his 
engagement  to  carry  the  plaintiff  safely;  which  leaves  it  in  doubt 
whether  he  told  the  jury  that  the  defendant  was  bound  at  his  peril  to 
provide  a  fit  vehicle,  a  failure  to  fulfil  which  duty  would  be  properly 
described  in  the  declaration  as  negligence,  and  left  it  to  them  to  say 
if  it  was  in  fact  reasonably  fit;  or  whether  he  left  it  to  the  jury  to 
say  whether  the  defendant  had  not  neglected  some  reasonably  practical 
means  of  ascertaining  its  fitness ;  but  the  counsel,  in  moving  for  a  new 
trial,  treat  it  as  a  direction  that  the  defendant  would  be  responsible 
though  he  had  conducted  his  business  with  all  the  caution  that  could 
be  reasonably  required;  and  the  judges,  in  refusing  the  rule,  all  appear 
to  have  so  understood  the  ruling,  and  to  hold  it  right. 

I  have  already  said  that  on  the  balance  of  reasoning  I  am  inclined  to 
think  that  such  ought  to  be  the  law ;  but  at  present,  sitting  in  a  court 

1  9Biiig.457.  been  laid  as  negligence  in  not  providing  a 

*  The  case  is  also  reported  in  2  Moo.  &  safe  carriage;  and  the  Chief  Justice's  direc- 

S.  620,  with  some  material  differences,  and  tion  to  the  jury  is,  "  that  the  defendant  was 

la  2  L.  J.  (C.  P.)  45,  with  so  strong  a  simi-  bound  to  provide  n  safe  conveyance  for  the 

larity  as   to   amount  to   identity  with    the  passengers  he  contracted  to  carry;  and  he 

report  in  9  Bing. ;  the  marginal  note,  state-  left  it  to  the  jury  to  say  whether  or  not  the 

iiient  of   facts,  as  well  as  the    judgments  defendant  had  observed  that  extreme  degree 

of  Park  and  Alderson,  JJ.,  being  almost  toti-  of  care  and  diligence  in  the  examination  of 

dem  verbis.    It  is,  however,  remarkable  that  his  coach  which  the  safety  of  his  passengers 

the  judgments  of  Gaselee  and  Bosanquet,  required    that    he    should    observe."     The 

JJ.,  are  omitted.    In  the  report  in  2  Moo.  &  judgments  also  differ  considerably  from  the 

Scott,  the  cause  of  action  is  said  to  have  report  in  9  Bingham. 


LATENT   DEFECTS    IN    HIS    VEHICLE.  147 


English  Court  of  Queen's  Bench. 

of  coordinate  jurisdiction  with  the  Common  Pleas,  I  think  it  enough 
that  the  decision  is  in  point. 

In  an  American  case,  Ingalls  v.  Bills,^  given  at  length  in  the  editor's 
note  to  Story  on  Bailments,'^  the  court,  after  considering  the  English 
cases,  came  to  a  conclusion  opposite  to  that  which  I  have  come  to, 
expressly  stating  that  they  do  not  agree  with  the  opinion  of  the  Court 
of  Common  Pleas  in  Sharp  v.  Grey,  if  it  is  understood  as  I  think  it 
must  be.  It  will  be  verj^  fit,  if  the  case  at  bar  is  taken  into  a  court  of 
error,  that  the  reasoning  of  the  American  court  should  be  carefully  and 
respectfully  considered ;  and  if  it  appear  to  the  court  of  error  satisfac- 
tory, they  may  act  upon  it,  and  overrule  the  case  of  Sharp  v.  Grey. 
But  it  is  clear  that  we,  in  the  Court  of  Queen's  Bench,  cannot  treat  the 
American  decision  as  an  authority  to  be  placed  on  the  same  footing  as 
the  decision  of  the  Court  of  Common  Pleas. 

The  judgment  of  this  case  has  been  delayed  until  the  argument  in  the 
ease  of  Hando  v.  London,  Chatham,  and  Dover  Railway  Company  was 
heard,  as  it  was  anticipated  that  a  similar  point  might  arise  in  that  case ; 
but  it  was  not  necessary  to  decide  it.^ 

I  think  that  the  Irish  case  of  Burns  v.  Cork  and  Bandon  Railway 
Company^  really  throws  no  light  upon  the  point  before  us.  In  that 
case  a  plea  was  pleaded  which  was  clearly  intended  to  raise  the  ver^^ 

1  9  Mete.  1,  ante,  p.  112.  whom  tlie  cause  was  tried,  directed  a  ver- 

2  §  592  (Tth  ed.),p.565.  diet  for  the  defendants;  and  a  rnle  having 
8  Hando  v.  London  etc.  R.  Co.  (Q.  B.,May       been  obtained,  pursuant  to  leave  reserved, 

6,  1867)  was  an  action  by  a  wife  to  recover  to  enter  it  for  the  plaintiff,  Pollock,  Q.  C, 
damages  for  the  death  of  her  husband.  The  showed  cause,  and  maintained,  first,  that 
deceased  was  killed  by  an  accident  which  as  there  was  no  negligence  shown,  but  the 
occurred  while  he  was  travelling  in  a  car-  contrary,  the  defendants  were  not  liable: 
riage  on  the  defendants'  railway.  The  en-  for  that  carriers  of  passengers  did  not  war- 
gine  and  train  ran  off  the  rails,  and  after  rant  the  safety  of  their  passengers ;  and  he 
the  accident  a  spring  of  the  engine  was  cited  most  of  the  cases  noticed  in  the  judg- 
found  broken,  the  fracture  being  quite  fresh.  ments  in  the  principal  case;  secondly,  that 
Unless  this  breaking  caused  the  engine  to  even  if  the  defendants  would  have  been 
leave  the  rails,  there  was  no  evidence  of  the  liable  had  the  deceased  been  an  ordinary 
cause  of  the  accident.  The  engine  had  been  passenger,  the  relation  of  master  and  ser- 
carefully  examined  before  starting.  At  the  vant  existed  between  him  and  the  defend- 
time  of  the  accident  the  deceased  was  a  ants,  and  the  injury  occurred  in  the  ordinary 
workman  at  ga^-works  which  the  defend-  course  of  his  duty.  Powell,  Q.  C,  and  Pren- 
ants  were  empowered  by  act  of  Parliament  tice.Q.  C,  in  support  of  the  rule,  were  heard 
to  keep  up  for  their  own  use,  and  they  had  on  the  latter  point  only.  The  court  (Cock- 
works  at  Battersea  and  Dover.  The  de-  burn,  C.  J.,  Blackburn,  Mellor,  and  Lush, 
ceased  was  in  the  regular  employ  of  the  JJ.)  were  clearly  of  opinion  that  the  case 
defendants,  and  it  was  i)art  of  his  ordinary  was  not  distinguishable  from  Morgan  r.Vale 


duty  to  g  I  from  one  set  of  works  to  the  other 
as  occasion  required,  about  once  a  fortnight 
He  travelled  by  the  defendants'  railway  free 
and  received  one  shilling  for  his  extra  ex 
penses.  He  was  so  travelling  on  the  occa 
sion  of  his  death.    Coekburn,  C.  J.,  before 


of  Neath  R.  Co.,  L.  R.  1  Q.  B.  149;  Feltham 
V.  England,  L.  R.  2  Q.  B.  33;  and  Tunney  v. 
Midland  R.  Co.,  L.  R.  1  C.  P.  291,  and  dis- 
charged the  rule. 

*  Irish  Rep.  13  C.  L.  CN.  8.)  B43. 


148  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 

Readhead  v.  Midland  Railway  Company. 

point  before  us,  and  which  I  own  I  should  myself  have  thought  did 
raise  it.  The  Irish  Court  of  Exchequer,  in  giving  judgment  against 
the  plea,  say  that  if  there  is  a  warranty,  the  plea  was  clearly  bad ;  and 
that  even  if  there  was  only  a  duty  to  take  every  care,  the  plea  did  not 
sufficiently  show  the  fulfilment  of  that  duty,  and  was  therefore  bad. 
Probably  the  court  were  not  agreed  on  the  question,  and  intended  to 
avoid  expressing  any  opinion  on  it;  though  I  should  rather  conjecture, 
from  the  language  used,  that  the  learned  judge  who  wrote  the  judg- 
ment inclined  to  the  opinion  that  there  was  a  warranty. 

I  have  only  to  add  that  I  do  not  think  that  the  duty  to  suppl3^  a  sea- 
worthy ship  or  a  sufficient  vehicle  by  land  is  equivalent  to  a  duty  to 
provide  one  perfect,  and  such  as  never  can,  witliout  some  extraordinary 
peril,  break  down,  which  would  have  the  effect  of  making  the  carrier  an 
insurer  against  all  losses  arising  from  any  failure  in  the  vehicle  which 
cannot  be  shown  to  arise  from  some  unusual  accident. 

I  had  occasion,  in  the  case  of  Burges  v.  Wickham,^  to  consider  what 
was  the  meaning  of  the  term  "seaworthy,"  as  applied  to  a  ship ;  and 
I  see  no  reason  to  change  the  opinion  which  I  then  expressed,  that  it, 
meant  no  more  than  that  degree  of  fitness  which  it  would  be  usual  and 
prudent  to  require  at  the  commencement  of  the  adventure ;  and,  apply- 
ing a  similar  principle  to  a  land  journey,  I  agree  with  what  I  understand 
to  have  been  the  direction  of  Erle,  C.  J.,  in  Ford  v.  London  and 
South- Western  Railway  Company ^"^  that  the  railway  company  are  not 
bound  to  have  a  carriage  made  in  the  best  of  all  possible  ways,  but 
sufficiently  fulfilled  their  duty  by  providing  a  carriage  such  as  was  found 
in  practical  use  to  be  sufficient.  In  other  words,  I  understand  the 
obligation  to  be  to  furnish,  not  a  perfect  vehicle,  but  one  reasonably 
sufficient.  But  in  the  present  case  the  carriage  was  not  such  as  to  be 
reasonably  sufficient.  Had  the  parties  who  sent  it  out  known  of  the 
existence  of  this  defect  in  the  tire,  there  would  have  been  strong- 
ground  for  accusing  them  of  manslaughter  if  death  had  ensued.  They 
did  not  know  it,  and  could  not  discover  it  until  the  tire  broke ;  and 
Ihey  are  therefore  free  from  all  moral  blame  or  criminal  responsibility. 
The  question,  therefore,  is  distinctly  raised,  whether  the  obligation  of 
the  carrier  of  passengers  to  the  passenger  is  merely  to  take  every  pre- 
caution to  procure  a  vehicle  reasonably  sufficient  for  the  service,  whether 
by  sea  or  by  land,  in  which  case  the  direction  was  right ;  or  whether  it 
is.  as  I  think,  an  absolute  obligation,  at  his  peril,  to  supply  one,  or  be 
responsible  for  any  damage  resulting  from  a  defect. 

»  8  Best  &  S.  6G9,  693 ;  33  L.  J.  (Q.  B.)  17,  26.  «  2  Fost.  &  Fin.  730. 


LATENT  DEFECTS  IN  HIS  VEHICLE.  149 

Euglisli  Court  of  Exchequer  Chamber. 

Taking  the  view  of  the  law  which  I  do,  I  think  the  rule  for  a  new 
trial  ought  to  be  made  absolute ;  but  the  majority  of  the  court  being  of 
a  different  opinion,  it  must  be  discharged. 

Rule  discharged. 

Against  this  judgment  an  appeal  was  taken  to  the  Exchequer 
Cliamber,  where,  after  the  case  had  been  again  argued,  Maj-  10,  1869, 
the  judgment  of  the  court  (Kelly,  C.  B.  ;  Byles,  Keating,  and  M. 
Smith,  JJ.  ;   Channell  and  Bramwell,  BB.)  was  delivered  by  — 

Montague  Smith,  J.  — In  this  case  the  plaintiff,  a  passenger  for  hire 
on  the  defendants'  railway,  suffered  an  injury  in  consequence  of  the 
carriage  in  which  he  travelled  getting  off  the  line  and  upsetting.  The 
accident  was  caused  b}'^  the  breaking  of  the  tire  of  one  of  the  wheels 
of  the  carriage,  owing  to  "a  latent  defect  in  the  tire,  which  was  not 
attributable  to  any  fault  on  the  part  of  the  manufacturer,  and  could  not 
be  detected  previously  to  the  breaking." 

Does  an  action  lie  against  the  company  under  these  circumstances? 

This  question  involves  the  consideration  of  the  true  nature  of  the 
contract  made  between  a  passenger  and  a  general  carrier  of  passengers 
for  hire.  It  is  obvious  that  for  the  plaintiff,  on  this  state  of  facts,  to 
succeed  in  this  action,  he  must  establish  either  that  there  is  a  warranty 
by  way  of  insurance  on  the  part  of  the  carrier  to  convey  the  passenger 
safely  to  his  journey's  end,  or,  as  the  learned  counsel  mainly  insisted,  a 
warranty  that  the  carriage  in  which  he  travels  shall  be  in  all  respects 
perfect  for  its  purpose,  —  that  is  to  say,  free  from  all  defects  likely  to 
cause  peril,  although  those  defects  were  such  that  no  skill,  care,  or  fore- 
sight could  have  detected  their  existence. 

We  are  of  opinion,  after  consideration  of  the  authorities,  that  there 
is  no  such  contract,  either  of  general  or  limited  warranty  and  insurance, 
entered  into  by  the  carrier  of  passengers,  and  that  the  contract  of  such 
a  carrier,  and  the  obligation  undertaken  by  him,  are  to  take  due  care 
(including  in  that  terra  the  use  of  skill  and  foresight)  to  carry  a  passen- 
ger safely.  It  of  course  follows  that  the  absence  of  such  care  —  in 
other  words,  negligence — \v.)!ild  alone  be  a  breach  of  this  contract; 
and  as  the  facts  of  this  case  do  not  disclose  such  a  breach,  and  on  tin* 
contrary  negative  an}'  want  of  skill,  care,  or  foresight,  we  think  the 
plaintiff  has  failed  to  sustain  his  action,  and  that  the  judgment  of  the 
court  below,  in  favor  of  the  defendant  ought  to  be  affirmed. 

The  law  of  England  has,  from  the  earliest  times,  established^  broad 
distinction  between  the  liability  of  common  carriers  of  goods  and  of 
passengers.     Indeed,  the  responsibility  of  tlie  carrier  to  redeliver  the 


150  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 

Readhead  v.  Midland  Railway  Company. 

goods  in  a  sound  state  can  attach  only  in  tlie  case  of  goods.  This 
responsibilit}^  (like  the  analogous  one  of  innkeepers)  has  been  so  long 
fixed,  and  is  so  universally  known,  that  carriers  .of  goods  undertake  to 
carry  on  contracts  well  understood  to  comprehend  this  implied  liability. 
If  it  had  not  been  the  custom  of  the  realm,  or  the  common  law  declared 
long  ago,  that  carriers  of  goods  should  be  so  liable,  it  would  not  have 
been  competent  for  the  judges  in  the  present  day  to  have  imported  such 
a  liability  into  their  contracts  on  reasons  of  supposed  convenience. 
But  this  is,  as  it  seems  to  us,  what  we  are  asked  by  the  plaintiffs  to  do 
in  the  case  of  carriers  of  passengers. 

The  liability  of  the  common  carrier  of  goods  attached  upon  a  pai- 
ticular  bailment  of  the  goods  to  him  in  his  capacitj'  of  common  carrier, 
and  the  rules  which  govern  the  rights  of  bailors  or  bailees  of  things,  are 
of  course  applicable  only  to  things  capable  of  bailment.  The  law,  and 
the  reasons  for  it,  in  the  case  of  bailments  to  carriers  are  found  in  the 
great  judgment  of  Holt,  C.  J.,  in  Coggs  v.  Bei-nard,^  and  are  thus 
stated:  "As  to  the  fifth  sort  of  bailment,  viz.,  a  delivery  to  carry  or 
otherwise  manage  for  a  reward  to  be  paid  to  one  that  exercises  a  public 
employment  or  a  delivery  to  a  private  person :  Firsts  If  it  be  to  a  person 
of  the  first  sort,  and  he  is  to  have  a  reward,  he  is  bound  to  answer 
for  the  goods  at  all  events ;  and  this  is  the  case  of  the  common  carrier, 
common  hoyman,  master  of  a  ship,  etc.,  which  case  of  a  master  of  a 
ship  was  first  adjudged  ^  in  the  case  of  Morse  v.  Slue.^  The  law  charges 
this  person  thus  intrusted  to  carry  goods  against  all  events  but  acts  of 
God  and  of  the  enemies  of  the  king.  For  though  the  force  be  never  so 
great,  as  if  an  irresistible  multitude  of  people  should  rob  him,  neverthe- 
less he  is  chai'geable.  And  this  is  a  politic  establishment  contrived  b^^  the 
policy  of  the  law  for  the  safety  of  all  persons,  the  necessit}'  of  whose 
affairs  obhge  them  to  trust  these  sort  of  persons,  that  the}^  may  be  safe 
in  their  ways  of  dealing ;  for  else  these  carriers  might  have  an  oppor- 
tunitj'  of  undoing  all  persons  that  had  any  dealings  with  them,  by  com- 
bining with  thieves,  etc.,  and  yet  doing  it  in  such  a  clandestine  manner 
as  would  not  be  possible  to  be  discovered.  And  ttiis  is  the  reason  the 
law  is  founded  upon  in  that  point."  The  same  law  is  found  in  numerous 
text-books  (some  of  which  are  referred  to  in  the  judgments  of  mj- 
brothers  Mellor  and  Lush  in  their  judgments  below), ^  and  has  been 
acted  on  for  centuries  in  the  case  of  carriers  of  goods. 

The  court  is  now  asked  to  declare  the  same  law  to  be  applicable  to 
contracts  to  carry  passengers.     The  learned  counsel  for  the  plaintiff 

1  1  Smith's  Ld.  Gas.  (5tli  ed.)  171.  «  Sir  T  Raym  220 ;  1  Vent.  190, 23S. 

«  26  Car.  2.  »  L  R.  3  Q.  B.  416,  421. 


LATENT  DEFECTS  IN  HIS  VEHICLE.  151 

English  Court  of  Exchequer  Chamber. 

felt  the  diflBcuIty  of  the  attempt  to  apply  the  entire  liability  of  the  car- 
rier of  goods  to  the  carrier  of  passengers,  but  he  contended  for  and 
mainly  relied  on  the  proposition  that  there  was  at  least  a  warranty  that 
the  carriage  in  which  the  passenger  travelled  was  roadworthy,  and  that 
the  liability  of  the  carriers  of  goods  in  this  respect  ought  to  be  imported 
into  the  contract  with  the  passenger. 

But,  first,  it  is  extremely  doubtful  whether  such  warranty  can  be 
predicated  to  exist  in  the  contract  of  a  common  carrier  of  goods.  His 
obhgation  is  to  carry  and  redeliver  the  goods  in  safety,  whatever  happens. 
In  the  words  of  Lord  Holt,  "  he  is  bound  to  answer  for  the  goods  at  all 
events."  Again,  "  The  law  charges  this  person  thus  intrusted  to  carry 
goods  against  all  events  but  acts  of  God  and  of  the  enemies  of  the 
king."  And  tliis  broad  obligation  renders  it  unnecessary  to  import 
into  the  contract  a  special  warranty  of  the  roadworthiness  of  the  vehicle  ; 
for  if  the  goods  are  safely  carried  and  redelivered,  it  would  be  imma- 
terial whether  the  carriage  was  roadworthy  or  not ;  and  if  the  goods  are 
lost  or  damaged,  the  carrier  is  liable  on  his  broad  obligation  to  be 
answerable  "at  all  events,"  and  it  is  unnecessary  to  inquire  how  that 
loss  or  damage  arose. 

But,  however  that  may  be,  it  is  difficult  to  see  upon  what  principle 
the  contract  of  the  carrier  of  goods,  which  on  the  h3^pothesis  does  not 
apply  inits  entirety  to  carriers  of  passengers,  is  to  be  dissected,  and  a 
particular  part  of  it  severed  and  attached  to  what,  on  the  hypothesis,  is 
another  and  different  contract.  It  was  contended  that  the  reason  which 
made  it  the  policy  of  the  law  to  impose  the  wider  obligation  on  the  car- 
riers of  goods  applied  with  equal  force  to  impose  the  limited  warranty 
of  the  soundness  of  the  carriage  in  favor  of  the  passenger.  The  reason 
suggested  was,  as  we  understood  it,  that  a  passenger,  when  placed  in  a 
carriage,  was  as  helpless  as  a  bale  of  goods,  and  therefore  entitled  to 
have  for  his  personal  safety  a  warranty  that  the  carriage  was  sound  : 
but  this  is  not  the  reason,  or  any  thing  like  the  i-eason,  given  by  Lord 
Holt  for  the  liability  of  the  carrier  of  goods.  The  argument  founded 
on  this  reason,  however,  would  obviously  carry  the  liability  of  the  car- 
rier far  bej-^ond  the  limited  warranty  of  the  roadworthiness  of  the 
carriage  in  which  the  passenger  happened  to  travel.  His  safety  is  no 
doubt  dependent  on  the  soundness  of  the  carriage  in  which  he  travels  ; 
but  in  the  case  of  a  passenger  on  a  railway  it  is  no  less  dependent  on 
the  roadworthiness  of  the  other  carriages  in  the  same  train  and  of  the 
engine  drawing  them,  on  the  soundness  of  the  rails,  of  the  points,  of 
the  signals,  of  the  masonry,  in  fact  of  all  the  different  parts  of  the 
system  employed  and  used  in  his  transport,  and  he  is  equally  helpless 


152  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE - 

Readhead  v.  Midland  Railway  Company. 

as  regards  them  all.  If,  then,  there  is  force  in  the  above  reason,  why 
stop  short  at  the  carriage  in  which  the  passenger  happens  to  travel?  It 
surel}'  has  equal  force  as  to  all  these  things,  and,  if  so,  it  must  follow  as  a 
consequence  of  the  argument  that  there  is  a  warranty  that  all  these  things^ 
should  be  and  remain  absolutely  sound  and  free  from  defects.  This, 
which  appears  to  be  the  necessary  consequence  of  the  argument,  although 
Mr.  Manisty  disclaimed  the  desire  to  press  it  so  far,  tries  the  value  of 
it.  But  surely,  if  the  law  really  be  as  it  is  now  contended  to  be,  it 
would  have  been  so  declared  long  ago.  No  actions  have  been  more 
frequent  of  late  years  than  those  against  railway  companies  in  respect 
of  injuries  sustained  by  passengers.  Some  of  these  injuries  have  been 
caused  by  accidents  arising  from  defects  or  unsoundness  in  the  rolling- 
stock,  others  from  defects  in  the  permanent  works.  Long  inquiries 
have  taken  place  as  to  the  causes  of  these  defects,  and  whether  they 
were  due  to  want  of  care  and  skill,  and  these  inquiries  would  have  been 
altogether  immaterial  if  warranties  of  the  kind  now  contended  for  formed 
part  of  the  contract. 

An  obligation  to  use  all  due  and  proper  care  is  founded  on  reasons 
obvious  to  all,  but  to  impose  on  the  carrier  the  burden  of  a  warrant}' 
that  every  thing  he  necessarily  uses  is  absolutely  free  from  defects  likel}^ 
to  cause  peril,  when,  from  the  nature  of  things,  defects  must  exist  which 
no  skill  can  detect,  and  the  effects  of  which  no  care  or  foresight  can 
avert,  would  be  to  compel  a  man,  by  implication  of  law  and  not  by  his 
own  will,  to  promise  the  performance  of  an  impossible  thing,  and  would 
be  directl}'^  opposed  to  the  maxims  of  law.  Lex  non  cogit  ad  impossihilia, 
Nemo  tenetur  ad  impossibilia. 

If  the  principle  of  implying  a  warrant}'  is  to  prevail  in  the  present 
case,  there  seems  to  be  no  good  reason  why  it  should  not  be  equally 
applied  to  a  variety  of  other  cases, —  as,  for  instance,  to  the  managers  of 
theaters  and  other  places  of  pubHc  resort,  who  provide  seats  or  other 
accommodation  for  the  public.  Why  are  they  not  to  be  equally  held  to 
insure  by  implied  warranty  the  soundness  of  the  structures  to  which 
they  invite  the  pubUc  ?  But  we  apprehend  it  to  be  clear  that  such  per- 
sons do  no  more  than  undertake  to  use  due  care  that  their  buildings 
shall  be  in  a  fit  state.  Thus,  a  staircase  in  the  Polytechnic  Institution 
fell  and  injured  several  persons  attending  a  public  exhibition  there. 
Two  actions  were  brought  by  separate  plaintiffs  who  had  paid  money 
for  the  use  of  this  staircase.  The  first  was  tried  before  Wightman,  J., 
the  second  before  Eele,  C.  J.  No  one  seems  to  have  supposed  there 
was  any  warranty  of  the  soundness  of  the  staircase ;  yet  the  persons 
using  it  were  as  helpless  to  detect  or  prevent  the  accident  as  the  travel 


LATENT  DEFECTS  IN  HIS  VEHICLE.  153 


English  Court  of  Exchequer  Chamber. 


ler.  Both  learned  judges  put  the  liabiUty  entirely  on  the  question 
whether  there  was  the  want  of  due  care  in  maintaining  the  staircase, 
and  Erle,  C.  J.,  told  the  jury  the  defendants  would  not  be  liable  for 
latent  defects.  ^  So,  in  stating  the  liability  of  a  canal  company,  who 
made  the  canal  for  profit  and  allowed  the  public  to  use  the  canal  on 
payment  of  tolls,  Tindal,  C.  J.,  in  delivering  the  judgment  of  the 
Court  of  Exchequer  Chamber,  says:  "■The  common  law  in  such  a  case 
imposes  a  duty  upon  the  proprietors,  not,  perhaps,  to  repair  the  canal, 
or  absolutely  to  free  it  from  obstructions,  but  to  take  reasonable  care, 
so  long  as  they  keep  it  open  for  the  public  use  of  all  who  may  choose 
to  navigate  it,  that  they  may  navigate  without  danger  to  their  lives  or 
property. ' '  ^ 

The  liability  in  that  case  was  not  put  in  any  degree  upon  a  warranty 
that  the  canal  should  be  free  from  perilous  defects,  but  upon  the 
rational  obligation  to  use  due  care  that  it  should  be  so. 

The  common  law  with  regard  to  carriers  of  goods,  and  innkeepers, 
stands,  as  I  have  said,  on  its  own  special  grounds.  But  it  has  been 
found  so  stringent,  not  to  say  unjust,  in  the  liabilities  it  imposed  on 
persons  carrying  on  those  trades,  that  the  legislature  has  found  it 
necessary  in  both  cases  to  modify  its  stringency. 

It  will  now  be  necessary  to  examine  the  leading  authorities  cited 
during  the  argument. 

The  counsel  for  the  plaintiff,  in  the  first  place,  referred  to  some  of 
the  cases  in  which  it  has  been  held  that  in  contracts  for  the  supply  of 
goods  for  a  particular  purpose  there  is  an  implied  warranty  that  the 
goods  supplied  shall  be  reasonably  fit  for  that  purpose.  Bigge  v.  Par- 
kinson 3  is  a  case  of  that  class.  But  the  agreement  to  sell  and  supply 
goods  for  a  price  which  may  be  assumed  to  represent  their  value  is  a 
contract  of  a  different  nature  from  a  contract  to  carry,  and  has  essen- 
tially different  incidents  attaching  to  it.  Indeed,  the  learned  counsel 
did  not  cite  these  cases  as  directly  governing  the  present.  Even  in  the 
cases  of  contracts  to  supply  goods,  it  may  be  a  question,  on  which  it  is 
not  now  necessary  to  express  an  opinion,  how  far  and  to  what  extent 
the  vendor  would  be  liable  to  the  vendee  in  the  case  of  a  latent  defect 
of  the  kind  existing  in  the  present  case,  which  no  skill  or  care  could 
prevent  or  detect ;  that  is  to  say,  where  an  article  is  supplied  which 
has  been  manufactured  and  tested  in  the  best  and  most  careful  manner, 
so  as  to  be  turned  out  as  perfect  as  in  the  nature  of  things  it  could  be. 

1  Brazier   v.    Polytechnic    Institution,   1  "  Lancaster  Oanal  Co.  v.  Parnaby,  11  Ad. 

Fost.  &  Fin.  507;  Pike  v.  Polyteclinic  Insti-        &E.  243. 
tution,  1  Fost.  &  Fin.  712.  «  7  Hurl.  &  N.  955;  31  L.  J.  (Exch.)  301. 


154  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 

Readhead  v.  Midland  Railway  Company. 

It  is  clear  that  if  the  manufacturer  is  Uable  for  such  an  inevitable  and 
undiscoverable  defect,  he  can  never  sell  what  he  makes  without  the  risk 
of  an  action  attaching  itself  to  every  contract  he  enters  into,  — without, 
in  fact,  becoming  an  insurer,  unless  he  expressly  limits  his  liability. 

In  cases  of  express  warranties  the  compact  of  the  parties  is  to  be 
gathered  from  the  words  they  use  in  making  them.  When  warranties 
are  expressly  made,  the  pai'ties  themselves  may  guard  against  excessive 
liability  by  any  exceptions  they  please ;  and  in  those  implied  by  law,  the 
law  itself  must  take  care  to  keep  them  within  the  boundaries  of  reason 
and  justice,  so  as  not  to  impose  impracticable  obligations. 

It  is  now  proposed  to  consider  the  authorities  relied  on  as  having  a 
direct  bearing  on  the  question  before  us.  The  case  which  the  plaintiff's 
counsel  relied  on  as  the  strongest  in  his  favor  is  Sharp  v.  Grey.^  But 
that  case,  when  examined,  furnishes  no  sufficient  authority  for  the 
extensive  liability  which  the  plaintiff  seeks  to  impose  on  the  defendants. 
There  the  plaintiff  was  injured  by  an  accident  caused  by  the  breaking 
of  the  axletree  of  a  stage-coach.  The  defect  might  have  been  discov- 
ered if  a  certain  examination  had  taken  place,  and  it  was  made  a 
question  of  fact  at  the  trial  whether  it  would  have  been  prudent  or  not 
to  make  that  examination.  Tindal,  C.  J.  (at  p.  458),  who  tried  the 
cause,  is  reported  to  have  directed  the  jury  to  consider  "  whether  there 
had  been  on  the  part  of  the  defendant  that  degree  of  vigilance  which 
was  required  by  his  engagement  to  carry  the  plaintiff  safely."  Now,  if 
the  learned  Chief  Justice  had  supposed  there  was  an  absolute  warranty 
of  roadworthiness,  this  direction  could  not  have  been  given,  as  it  would 
have  been  an  utterly  immaterial  consideration.  The  juiy  found,  on  this 
jiirection,  for  the  plaintiff ;  and  a  motion  was  made  in  the  absence  of 
Tindal,  C.  J.,  for  a  new  trial.  Two  of  the  learned  judges  (Gaselee 
and  BosANQUET,  JJ. ),  in  refusing  the  rule,  are  certainly  reported  to 
have  used  expressions  which  seem  to  indicate  that  they  thought  the 
defendant  bound  to  supply  a  roadworthy  vehicle.  Park,  J.,  uses  lan- 
guage which,  as  reported,  is  ambiguous.  But  the  judgment  of  Alder- 
SON,  J.,  is  distinctly  opposed  to  the  notion  of  a  warranty  against  latent 
and  undiscoverable  defects.  He  says:  "A  coach  proprietor  is  liable 
for  all  defects  in  his  vehicle  which  can  be  seen  at  the  time  of  construc- 
tion, as  well  as  for  such  as  may  exist  afterwards  and  be  discovered  by 
investigation."  We  have  referred  somewhat  fully  to  this  case,  because 
it  was  put  forward  as  the  strongest  authority  in  support  of  the  plaintiff's 
claim  which  can  be  found  in  the  English  courts,  and  because  it  was 

1  9  Biug.  457. 


LATENT  DEFECTS  IN  HIS  VEHICLE.  155 

English  Court  of  Exchequer  Chamber. 

relied  on  by  the  judges  of  the  Court  of  Appeals  in  New  York  in  a 
decision  which  will  be  afterwards  referred  to.  But  the  case,  when 
examined,  furnishes  no  sufficient  authority  for  the  unlimited  warranty 
now  contended  for.  The  facts  do  not  raise  the  point  for  decision, 
and  the  authority  of  Tindal,  C.  J.,  and  Alderson,  J.,  is  against  the 
plaintiff. 

The  direction  of  Best,  C.  J.,  in  Bremner  v.  Williams'^  was  not  neces- 
sary to  the  decision  of  the  case.  The  ruling  of  Lord  Ellenborough  in 
Israel  v.  Clark^  was  also  relied  on.  Of  these  two  last  authorities 
Blackburn,  J.,  in  his  judgment  below,^  said:  "These  are,  it  is  true, 
only  nisi  prius  decisions,  and  neither  reporter  has  such  a  character  for 
intelligence  and  accuracy  as  to  make  it  at  all  certain  that  the  facts  are 
correctly  stated  or  that  the  opinion  of  the  judge  was  rightly  under- 
stood." We  find  also  that  Best,  C.  J.,  makes  observations  in  the 
opposite  sense  in  the  case  of  Crofts  v.  Waterliouse.^  These  are  really 
the  only  English  authorities  which  afford  any  support  at  all  to  the  plain- 
tiff's view,  for  the  interpretation  reported  to  have  been  given  by  Cress- 
well,  J.,  in  Benett  v.  Peninsular  and  Oriental  Steam  Packet  Company,^ 
of  the  case  of  Sharp  v.  Grey,  was  only  an  observation  made  during  an 
argument,  when  it  was  cited  as  incidentally  bearing  on  the  question 
then  before  the  court,  and  cannot  be  relied  on  as  an  authority. 

On  the  other  hand,  there  is  not  only  the  plain  distinction  between  the 
liabilities  of  carriers  of  goods  and  of  passengers,  constantly  referred 
to  by  text- writers  and  judges  as  well  known  and  settled  law,  but  numer- 
ous cases  have  been  decided  on  grounds  entirely  at  variance  with  the 
supposition  that  there  existed  contemporaneously  with  them  the  liability 
by  way  of  warranty.  In  Aston  v.  Heaven,^  which  was  the  case  of  an 
injury  to  a  passenger,  Eyre,  C.  J.,  after  carefully  pointing  out  the  law 
as  to  the  liability  of  carriers  of  goods  to  make  good  all  losses  except 
those  happening  from  the  act  of  God  or  the  king's  enemies,  and  the 
reason  for  it,  saj^s:  "I  am  of  opinion  the  cases  of  losses  of  goods  by 
carriers  and  the  present  are  totally  unlike."  Again,  "There  is  no 
such  rule  in  the  case  of  the  carriage  of  persons.  This  action  stands  on 
the  ground  of  negligence  alone."  In  Christie  v.  Griggs,"^  Sir  James 
Mansfield  says:  "There  is  a  difference  between  a  contract  to  carry 
goods  and  a  contract  to  carry  passengers.  For  the  goods  the  carrier 
was  liaV)le  at  all  events.  But  he  did  not  warrant  the  safety  of  the  pas- 
sengers.    His  undertaking  as  to  them  went  no  further  than  this,  that  as 

1  1  Car.  &  p.  414,  416.  ••  3  King.  319. 

«  4  Esp.  25.1.  6  6  C.  n.  782. 

«  L.  K.  2  y.  K.  437.  •  2  Esj).  533.     '  2  Camp.  79,  post,  p.  181. 


156  LIABILITY    OF    THE    CARRIER    FOR   NEGLIGENCE. 


Eeadhead  v.  Midland  Kailway  Company. 


far  as  human  care  and  foresight  could  go,  he  would  provide  for  their 
safe  conveyance."  In  Crofts  v.  Waterhouse,  the  observations  attrib- 
utable to  Best,  C.  J.,  clearly  show  that  he  did  not  think  there  was  any 
warranty  on  the  part  of  the  carrier  of  passengers ;  and  Park,  J. ,  in  the 
same  case,  says:  "A  carrier  of  goods  is  liable  at  all  events.  ♦  *  * 
A  carrier  of  passengers  is  only  liable  for  negligence." 

But  besides  the  observations  of  individual  judges  to  show  what  has 
hitherto  been  understood  to  be  the  law,  there  is  the  series  of  important 
cases  involving  costly  and  protracted  trials,  in  which,  by  common  con- 
sent, the  liability  of  carriers  of  passengers  has  been  based  upon  the 
duty  to  take  due  care,  and  not  upon  a  warranty. 

In  Grote  v.  Chester  and  Holyhead  Railway  Company,'^  where  the  acci- 
dent arose  from  the  breaking  down  of  one  of  the  bridges  of  the  railway, 
the  case  turned  on  what  would  or  would  not  be  negligence  for  which  the 
company  were  answerable.  Parke,  B.,  said:^  "It  seems  to  me  the 
company  would  still  be  liable  for  the  accident  unless  he  (the  engineer) 
also  used  due  and  reasonable  care  and  employed  proper  materials  in  the 
work."  There  is  no  trace  in  the  report  that  it  ever  occurred  to  the 
court  to  suppose  there  was  any  warranty  of  the  safety  of  the  bridge. 

In  a  case  tried  before  Erle,  C.  J.,  Ford  v.  London  and  South-Western 
Railway  Company,'^  the  plaintiff  was  injured  by  the  tender  of  the  train 
being  thrown  off  the  line,  and  one  of  the  causes  was  alleged  to  be  the 
defective  tire  of  one  of  the  wheels  of  the  tender.  Erle,  C.  J.,  in  his 
direction  told  the  jury:  "The  action  is  grounded  on  neghgence.  Neg- 
ligence is  not  to  be  defined,  because  it  involves  some  inquiry  as  to  the 
degree  of  care  required,  and  that  is  the  degree  which  the  jury  think  is 
reasonable  to  be  required  from  the  parties,  considering  all  the  circum- 
stances. The  railway  company  is  bound  to  take  reasonable  care  to  use 
the  best  precautions  in  known  practical  use  for  securing  the  safety  of 
their  passengers."  There  the  defect  was  in  the  tire  of  a  wheel  of  the 
tender  of  the  train  by  which  the  plaintiff  travelled.  And  no  suggestion 
that  a  warranty  of  its  soundness  existed  was  made  throughout  the  case. 

But  a  case  still  more  directly  bearing  upon  the  present  point  was  tried 
before  Cockburn,  C.  J.^  There  the  accident  happened  in  consequence  of 
the  breaking  of  the  tire  of  the  rear  wheel  of  the  engine.  The  tire  broke 
from  a  latent  flaw  in  the  welding.  The  trial  lasted  six  days ;  and  the 
questions  mainly  were,  whether  the  flaw  was  not  visible,  and  whether  b}' 
the  exercise  of  care  it  might  not  have  been  detected.  The  Lord  Chief 
Justice  commences  a  full  direction  to  the  jury  by  saying: ^  "The  ques- 

1  2  Exch.  251.  <  stokes  v.  Eastern  Counties  K.  Co.,  2  Fost. 

«  Id.  254.  &  Fin.  G'»l. 

•  S  Fost.  &  Fin.  730,  732.         ,  <>  2  Fost.  &  Fin.  693. 


LATENT    DEFECTS    IN    HIS    VEHICLE.  157 

English  Court  of  Exchequer  Chamber. 

tion  is,  whether  the  breaking  of  the  tire  resulted  from  any  negligence 
in  the  defendants,  or  their  servants,  for  which  they  are  responsible." 
The  latent  defect  in  the  tire  was  admitted  to  be  the  cause  of  the  acci- 
dent; but  the  jury  having  found,  in  answer  to  specific  questions,  that 
there  was  no  evidence  that  the  tire  was  negHgently  welded,  and  that 
the  defect  had  not  become  visible,  and  having  in  other  respects  nega- 
tived negligence,  the  verdict  was  entered  for  the  defendants.  The  facts 
of  that  case  appear  to  be  exactl}'  like  the  present,  except  that  in  this 
case  the  defective  tire  was  in  the  wheel  of  the  carriage,  and  there  in 
the  wheel  of  the  engine.  But,  for  the  reasons  already  given,  it  can 
never  be  that  a  warranty  can  exist  as  to  the  carriage,  but  not  as  to  the 
engine  drawing  it.  Thus,  then,  it  is  plain  a  trial  of  six  days  took  place 
on  issues  which  were  utterl}'  immaterial  if  a  warranty  ought  to  have  been 
implied  ;  and  there  the  learned  Chief  Justice  and  the  parties  themselves 
seem  to  have  been  utterly  unconscious  of  the  contract  which  was  really 
existing  if  the  plaintiff  in  this  case  is  right;  for  the  warranty,  as  an 
obligation  implied  by  law,  must  have  existed  at  the  time  of  these  trials 
if  it  exists  now,  and  surely  it  is  strong  to  show  that  no  such  rule  does 
form  part  of  a  common  law  that  it  was  not  then  recognized  and  de- 
clared. 

The  learned  counsel  for  the  plaintiff  insisted  that  a  carrier  by  sea  is 
bound  to  have  his  ship  seaworthy.  Undoubtedly  the  carrier  of  goods 
by  sea,  like  the  carrier  of  goods  by  land,  is  bound  to  carry  safely,  and 
is  responsible  for  all  losses,  however  caused,  whether  by  the  unsea- 
worthiness of  the  ship  or  otherwise ;  and  it  does  not  appear  to  be 
material  to  inquire,  when  he  is  subject  to  this  large  obligation,  whether 
he  is  also  subject  to  a  less  one.  In  the  case  of  Lyon  v.  Mells^^  it  was 
no  doubt  stated  by  the  court  that  the  carrier  of  goods  is  bound  to  have 
a  seaworthy  ship,  but  this  only  as  part  of  his  general  liability.  It  is 
well  to  observe  that  Holroyd,  who  argued  for  the  plaintiff,  and  Gaselee 
for  the  defendant,  both  state  the  liability  of  the  carrier  in  all  its  breadth, 
viz.,  a  liability  for  all  losses,  however  happening,  except  by  the  act  of 
God  and  the  king's  enemies.  This  case  therefore  falls  within  the 
class  of  decisions  relating  to  the  liability  of  the  carriers  of  goods.  No 
case  has  been  found  where  an  absolute  warranty  of  the  seaworthiness 
of  the  ship  in  the  case  of  passengers  has  arisen,  and  it  affords  a  strong 
ground  for  presuming  that  no  such  liability  exists  that  in  this  maritime 
nation  no  passenger  has  ever  founded  an  action  on  it. 

The  case  of  Burns  v.  Cork  and  Bandon  Raihvay  Company,^  in  the 
Irish  Court  of  Common  Pleas,  certainly  does  not  support  the  plaintiff's 

»  6  East,  423.  «  Irish  Rep.  13  C.  L.  (N.  8.)  543. 


158  LIABILITY    OF    THE    CARRIER    FOR    jSEGLIGENCE. 

Readhead  v.  Midland  Railway  Company. 

view  of  the  law.  The  court  say  there,  the  averments  in  the  defendant's 
plea  are  all  consistent  with  gross  and  culpable  negligence,  and  on  that 
ground  give  judgment  for  the  plaintiff.  The  judgment  plainly  shows 
that  the  court  do  not  mean  to  declare  that  there  is  an  absolute  under- 
taking that  the  vehicle  shall  be  free  from  defects.  The  language  is : 
"Free  from  defects  so  far  as  human  care  and  foresight  can  provide, 
and  perfectly  roadworthy."  The  court  refer  with  approbation  to  the 
language  of  Sir  James  Mansfield  and  Alderson,  J.,  which  helps  to 
explain  that  they  were  disposed  to  adopt  the  views  of  tliose  learned 
judges,  and  to  place  the  liability,  not  on  a  warranty,  but  on  the  obliga- 
tion to  exercise  care  and  foresight. 

It  now  remains  to  consider  the  American  decisions  on  the  subject. 
They  have  not  been  uniform.  The  judgment  of  Mr.  Justice  Hubbari> 
in  Ingalls  v.  Bills,^  cited  at  length  by  my  brother  Mellok  in  his  judg- 
ment below, 2  is  opposed  to  the  notion  of  a  warranty. 

Decisions,  however,  were  cited  before  us  by  Mr.  Manisty,  from  the 
courts  of  the  State  of  New  York,  having  a  contrar}^  tendency,  to  show 
us  that  in  that  State  the  law  had  been  declared  in  favor  of  annexing  a 
warranty  to  the  contract.  The  most  important  of  these  cases  is  Alden 
V.  New  York  Central  Raihoay  Company ^^  in  the  Court  of  Appeals  of 
the  State  of  New  York.  That  was  the  case  of  an  accident  caused  by 
a  defect  in  an  axletree,  and  the  reasons  given  by  Gould,  J.,  for  the 
decision  are  not  satisfactory  to  our  minds.  The  learned  judge  seems 
to  assume  that  there  was  no  negligence  shown  on  the  part  of  the  com- 
pany. He  cites  the  case  of  Sharp  v.  Grey  J  in  the  Court  of  Common 
Pleas  here,  and  he  interprets  that  case  to  determine  that  the  carrier 
warrants  the  roadworthiness  of  his  coach.  But  if  the  view  of  the  case 
of  Sharp  v.  Grey  taken  in  the  early  part  of  this  judgment  is  correct, 
the  learned  judge  gave  too  great  weight  to  it.  Gould,  J.,  then,  after 
having  given  the  rule  as  he  supposed  it  to  be  laid  down  in  Sharp  v.  Grey, 
observes:  ^  "And  though  this  may  seem  a  hard  rule,  it  is  probably  the 
best  that  can  be  laid  down,  since  it  is  plain  and  easy  of  application,  and 
when  once  established  is  distinct  notice  to  all  parties  of  their  duties 
and  liabilities."  With  deference  to  the  learned  judge,  those  reasons 
founded  on  the  convenience  of  the  arrangement  are  scarcely  suflScieni 
to  warrant  the  introduction  of  onerous  obligations  into  the  contracts 
of  parties ;  and  the  terms  in  which  the  judgment  is  given  rather  lead  to 
the  conclusion  that  the  learned  judge  was  conscious"  that  he  was  annex- 
ing to  the  contract  of  the  carriers  of  passengers  what  had  not  hitherto 

»  9  Mete.  1,  15 ;  ante,  p.  123.  ^  26  N.  Y.  102. 

«  L.  R.  2  Q.  B.  430.  *  9  Bing.  457.     ^  26  N.  Y.  104. 


LATENT    DEFECTS    IN    HIS    VEHICLE.  159 

English  Court  of  Exchequer  Chamber. 

been  understood  to  form  pnrt  of  it.  The  English  courts  are  desirous 
to  treat  the  American  decisions  with  great  respect,  but  as  their  authority' 
here  must  mainly  depend  on  the  reasons  on  which  they  are  founded, 
we  have  felt  bound  to  examine  the  reasons  on  which  this  decision  was 
based,  with  the  result  which  has  been  already  stated. 

Warranties  implied  by  law  are  for  the  most  part  founded  on  the  pre- 
sumed intention  of  the  parties,  and  ought  certainly  to  be  founded  on 
reason,  and  with  a  just  regard  to  the  interests  of  the  party  who  is 
supposed  to  give  the  warrant}^  as  well  as  of  the  party  to  whom  it  is  sup- 
posed to  be  given. 

We  have  already  gone  fully  into  the  reasons  for  holding  that,  in  our 
opinion,  the  warrant}'  contended  for  in  this  case  is  not  so  founded. 

On  the  other  hand,  it  seems  to  be  perfectly  reasonable  and  just  to 
hold  that  the  obligation  well  known  to  the  law,  and  which  because  of 
its  reasonableness  and  accordance  with  what  men  perceive  to  be  fair 
and  right  has  been  found  applicable  to  an  infinite  variety  of  cases  in 
the  business  of  life,  viz.,  the  obligation  to  take  due  care,  should  be 
attached  to  this  contract.  We  do  not  attempt  to  define,  nor  is  it  neces- 
sar}'  to  do  so,  all  the  liabilities  which  the  obligation  to  take  due  care 
imposes  on  the  carriers  of  passengers.  Nor  is  it  necessary,  inasmuch 
as  the  case  negatives  any  fault  on  the  part  of  the  manufacturer,  to 
determine  to  what  extent  and  under  what  circumstances  they  may  be 
liable  for  the  want  of  care  on  the  part  of  those  they  employ  to  con- 
struct works,  or  to  make  or  furnish  the  carriages  and  other  things  they 
use.^  "Due  care,"  however,  undoubtedly  means,  having  refei'ence  to 
the  nature  of  the  contract  to  carr}',  a  high  degree  of  care,  and  casts  on 
carriers  the  duty  of  exercising  all  vigilance  to  see  that  whatever  is 
required  for  the  safe  conve37ance  of  their  passengers  is  in  fit  and  proper 
order.  But  the  duty  to  take  due  care,  however  widely  construed  or 
however  rigorously  enforced,  will  not,  as  the  present  action  seeks  to  do, 
subject  the  defendants  to  the  plain  injustice  of  being  compelled  by  the 
law  to  make  reparation  for  a  disaster  arising  from  a  latent  defect  in  the 
machinery  which  they  are  obliged  to  use,  which  no  human  skill  or  care 
could  either  have  prevented  or  detected. 

In  the  result,  we  come  to  the  conclusion  that  the  case  of  the  plaintiff, 
so  far  as  it  relies  on  authority,  fails  in  precedent ;  and  so  far  as  it  rests 
on  principle,  fails  in  reason.  Consequently  the  judgment  of  the  Court 
of  Queen's  Bench  in  favor  of  the  defendants  will  be  affirmed. 

Judgment  affirmed. 

»  See,  on  this  point,  Grote  v.  Chester  &  Holyhead  R.  Co.,  2  Exch.  251. 


160  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 

Hegemaa  v.  Western  Kailroad  Corporation. 

3.  THE   SAME   SUBJECT. 

•  Hegeman  V.  Western  Railroad  Corporation.* 

Court  of  Appeals  of  New  York,  1855, 

Hon.  Addison  Gardiner,  Chief  Judge. 

"     Hiram  Denio,  1 

"     Alexander  S.  Johnson,    >  Judges, 

"     Charles  H.  Ruggles,       J 

"  Gilbert  Dean,  I^j         ^.ro             ^^ 

,,  ,                   ^  J,                      Judges  of  the  Supreme  Courtt 

"  Augustus  C.Hand,                      ,        ^  •     r  ^        ^  ^r. 

..  „                  ^  >     and  ex-offlcio  Judges  of  the 

"  Schuyler  Crippen,                   n      *    ^  a         i 

'  Court  of  Appeals. 

"  Richard  P.  Marvin,  J 

1.  Degrree  of  Care  required  of  Carriers  of  Passengers  by  Rail.  — The  degree  of  pre- 

caution, care,  and  skill  required  of  a  carrier  of  passengers  by  stage-coaches,  in  the 
preparation  and  management  of  the  means  of  conveyance,  is  not  a  test  of  that  which 
is  required  of  those  engaged  in  transporting  persons  at  a  high  rate  of  speed,  by 
means  of  steam-power,  upon  a  railway. 

2.  Carrier  responsible  for  the  utmost  Care  and  Skill  in  the  Ittanufacture  of  his 

Vehicles. —  Whether  a  railroad  company  manufactures  the  cars  and  engines  used  in 
transporting  passengers,  or  procures  them  from  others,  it  is  responsible  that  the  utmost 
precaution,  care,  and  skill  have  been  exercised  in  their  construction  to  render  them 
sufficient  and  safe. 

8.  Illustration  —  Case  in  Judg'ment.  —  Where  a  passenger  in  a  railroad  car  was  injured 
by  the  breaking  of  one  of  the  axles  in  consequence  of  a  latent  defect  which  could  not 
be  discovered  by  the  most  vigilant  external  examination,  it  was  held  that  the  company 
was  responsible  to  him  for  damages,  although  it  purchased  the  car  fi-ora  extensive  and 
skilful  car-makers,  and  the  axle  was  procured  from  a  manufacturer  of  skill  and  repu- 
tation, if  the  defect  could  have  been  discovered  in  the  process  of  manufacturing  the 
axle  or  car  by  the  application  of  any  test  known  to  men  skilled  in  such  business. 

4.  Question  for  Jury.  —  It  is  a  question  for  the  jury  to  decide  whether,  upon  the  evidence, 
a  railroad  company  is  guilty  of  negligence  in  not  ascertaining  the  utility  of  and  adopt- 
ing an  improvement  to  protect  passengers  from  injuries  to  which  the  cars  are  liable. 

The  action  was  brought  to  recover  damages  for  injuries  to  the  person 
of  the  plaintiff,  alleged  to  have  been  caused  by  the  negligence  of  the 
defendant.  The  cause  was  tried  at  the  Rensselaer  County  Circuit,  held 
by  WilUam  F.  Allen,  in  October,  1852.  The  plaintiff  proved  that  the 
defendant  was  the  proprietor  of  a  railroad  extending  from  Greenbush 
to  Boston ;  that  in  September,  1850,  the  plaintiff  was  a  passenger  on 
the  railroad,  having  taken  the  train  at  Greenbush  for  Boston ;  and  when 
near  Hinsdale,  Massachusetts,  an  axle  of  the  car  in  which  he  was  riding 
broke,  and  three  of  the  passengers  in  the  car  were  killed  and  the  plaintiff 

•  Reported,  13  N.  T.  9. 


LATENT    DEFKCTS    IN    HIS    VEHICLE.  lt)l 

Court  of  Appeals  of  New  York. 

was  seriously  and  permanently  injured.     Tlie  plaintiff  rested  his  case 
on  proving  the  accident  and  the  injury  to  him. 

On  the  part  of  the  defendant  it  was  proved  that  the  track  of  the  rail- 
road was  in  good  order,  and  that  the  train  was  manned  by  a  competent 
and  skilful  conductor,  engineer,  and  brakemen  ;  that  at  the  time  of  the 
accident  the  train  was  going  at  the  rate  of  from  twenty-five  to  thirty 
miles  an  hour,  being  the  ordinary  speed  of  passenger-trains  ;  and  when 
the  accident  occurred  the  employees  of  the  defendant  were  at  their 
appropriate  places,  and  the  train  was  stopped  as  soon  as  possible  after 
the  axle  broke.  The  conductor  who  was  in  charge  of  the  train  at  the 
time,  testified  that  the  car  which  broke  had  been  run  upon  the  road 
about  sixteen  months ;  that  it  was  new  when  it  came  into  his  train  ;  that 
it  was  built  at  Springfield  by  the  Springfield  Car  and  Engine  Company ; 
that  it  was  an  excellent  car  and  was  used  only  during  the  summer 
months,  as  they  did  not  wish  to  deface  it  by  putting  stoves  in  it. 
Another  witness  testified  that  he  had  been  in  the  employ  of  the  defend- 
ant thirteen  years,  and  was  at  the  time  of  the  trial ;  that  during  the  first 
nine  years  he  had  charge  of  the  machinery  and  the  running  of  trains, 
and  during  the  last  four  years  he  was  superintendent  of  the  defendant's 
road ;  that  the  car  in  question  was  ordered  by  one  Barnes,  his  prede- 
cessor, in  January,  1848,  and  was  delivered  to  the  defendant  the  last  of 
June  in  that  year;  that  it  was  a  part  of  the  witness's  business  to  exam- 
ine the  car,  and  that  he  did  so  before  it  was  accepted  by  the  company ; 
that  he  saw  the  car  repeatedly  while  it  was  being  built,  and  examined  it 
thoroughly  before  it  was  used  upon  the  road,  and  that  the  workmanship 
and  materials  were  of  the  best  quality ;  that  he  did  not  know  of  what 
quality  of  iron  the  axles  were  made,  but  that  the  contract  with  the 
Springfield  Car  and  Engine  Company  was  that  they  should  be  of  the 
best  of  Ames's  axles,  and  of  Salisbury  iron ;  that  at  the  time  this  car 
was  constructed  he  was  familiar  with  the  cars  used  on  the  principal 
railroads  in  New  England,  and  that  the  size  and  form  of  this  axle  were 
the  same  as  those  in  use  on  other  roads ;  that  Ames's  axles  were  among 
the  best  in  New  England,  and  that  Salisbury  iron  was  considered  the 
best  in  the  country ;  that  the  car  had  been  run  about  sixteen  months, 
and  lajd  up  during  two  winters,  and  that  it  was  safe  to  run  axles  that 
length  of  time ;  that  the  company  had  persons  in  its  employ  at  Green- 
bush,  Springfield,  and  Boston  whose  duty  it  was  to  examine  each  pas- 
senger-car carefully  before  the  starting  of  each  train  ;  that  at  the  time 
of  this  accident  one  Stowell  was  thus  employed  at  Springfield,  and  one 
Crandall  at  Greenliush,  and  that  they  were  competent  and  careful  men 
for  the  business   in   which   they  were   t'iiii)l()yed ;   that  the  defendant's 

11 


162  LIABILITY    or    THE    CARRIER    FOR    NEGLIGENCE. 


Hegeman  v.  Western  Railroad  Corporation. 


road  had  been  in  operation  since  1839,  and  that  but  one  axle  had  broken 
under  a  passenger-car  prior  to  1850.  This  witness  further  testified 
that  he  was  present  when  the  broken  axle  in  question  was  taken  from 
under  the  car,  and  that  he  then  examined  it ;  that  it  was  broken  about 
eleven  inches  inside  of  the  wheel  and  about  sixteen  inches  from  the 
centre  of  the  axle,  and  that  he  saw  nothing  indicating  that  there  had 
been  any  external  defect  in  the  axle,  and  that  he  thought  the  iron  was 
of  the  best  quality ;  that  one  of  the  other  axles  of  the  broken  car  was 
bent  nearly  into  the  form  of  an  S,  and  another  of  them  was  bent  a 
little ;  that  portions  of  the  broken  axle  were  tested  after  the  accident, 
to  try  the  quality  and  strength  of  the  iron,  by  the  witness,  and  other 
persons  whom  he  named.  On  his  cross-examination,  he  testified  that  the 
defendant  was  not  in  the  habit  of  applying  any  tests  to  axles  used  in 
constructing  its  cars ;  that  they  were  accustomed  to  examine  for  flaws, 
but  that  they  did  not  separate  the  axles  from  the  trucks  for  the  pur- 
pose of  making  the  examination,  and  they  condemned  them  for  the 
least  flaw  discovered ;  that  there  was  an  article  called  a  safety-beam 
attached  to  cars,  and  that  it  was  intended  to  hold  the  wheel  and  axle  in 
its  place  in  case  the  latter  should  break ;  that  the  cost  of  the  safety- 
beam  was  $75  per  car,  and  that  the  defendant  had  none  of  them  in  use 
in  1850;  that  the  defendant  commenced  using  them  in  1851;  that  he, 
the  witness,  could  not  say  of  his  own  knowledge  that  the  safety-beam 
was  in  use  prior  to  1850,  nor  could  he  state  when  he  first  heard  of 
them.  On  his  further  direct  examination,  he  testified  that  he  knew  of 
no  test  to  apply  to  car-axles ;  that  he  never  saw  a  safety-beam  in  use 
prior  to  June,  1851,  when  they  were  put  on  some  of  the  defendant's 
cars,  and  that  he  should  have  seen  them  if  they  had  been  in  use  on  the 
New  England  roads.  Stowell  and  Crandall,  the  persons  named  by  the 
last  witness,  testified,  the  former,  that  on  the  morning  of  the  day  of 
the  accident,  before  the  car  in  question  left  Springfield  for  Greenbush, 
he  examined  it  carefully,  particularly  its  axles  and  wheels,  to  see  if  it 
was  safe  and  in  good  condition,  and  that  he  discovered  no  defect  or 
indication  of  weakness  or  unsoundness;  and  the  latter,  that  he  made 
a  similar  examination  of  the  car  at  Greenbush,  just  before  it  left  there 
on  the  day  of  the  accident,  with  the  like  result.  A  number  of  other 
witnesses  were  examined  on  the  part  of  the  defendant,  who  had  skill 
and  knowledge  as  to  iron  and  its  manufacture,  and  in  making  and 
operating  railroad  cars,  who  testified  in  substance  that  the  car  in  ques- 
tion was  built  by  the  Springfield  Car  and  Engine  Company ;  that  the 
axle  which  broke  was  of  the  usual  size  and  description  of  axles  then  in 
use ;    and  that  it  was  made  of  good  Salisbury  iron,  which  was  and  is 


LATENT    DEFECTS    IN    HIS    VEHICLE.  163 


Court  of  Appeals  of  New  York. 


considered  the  best  kind  of  iron  for  such  purposes.  They  also  testified 
that  after  the  accident  the  broken  axle  was  examined  by  them,  with  a 
view  of  ascertaining  the  quality  of  the  iron,  and  subjected  to  the  usual 
tests  for  determining  the  strength  of  iron,  and  that  it  proved  to  be  of 
superior  quality  and  strength.  They  further  testified  that  upon  examin- 
ing the  axle  after  it  was  broken,  a  slight  crack  was  discovered  in  the 
iron,  at  the  broken  point,  about  a  quarter  of  an  inch  deep  and  one  and 
one-half  inches  long ;  that  this  kind  of  crack  is  peculiar  to  hammered 
iron,  and  is  called  a  "fire-crack,"  and  that  there  was  no  way  of  discov- 
ering its  existence  except  by  bending  the  axle  after  it  was  manufactured  ; 
that  this  defect  in  the  axle  could  not  be  discovered  before  it  was  broken, 
by  careful  inspection,  or  by  striking  it  with  a  hammer,  or  in  any  way 
except  by  bending  it ;  that  no  external  defect  existed  in  the  axle,  which 
was  discoverable. 

The  plaintiff,  in  reply,  called  several  witnesses,  who,  after  objection 
and  exception  by  the  defendant,  testified  that  the  safety-beam  was 
invented  many  years  prior  to  1850 ;  that  during  several  years  previous 
to  1850  it  was  in  use  on  some  of  the  railroads  in  the  State  of  New 
York,  in  New  Jersey,  and  other  sections  of  the  country ;  but  that  it 
was  not  in  use  on  the  New  England  roads  prior  to  1851,  and  that  it 
was  not  generally  adopted  and  put  in  use  on  railroads  until  1851.  The 
plaintiff  also  gave  evidence  in  reply,  tending  to  show  that  some  persons 
engaged  in  manufacturing  car-axles  and  cars  were  accustomed  to  bend 
the  iron  of  which  the  axles  were  made,  and  the  axles  after  they  were  ■ 
manufactured  and  before  they  were  used  in  constructing  the  car,  to 
discover  fire-cracks.  There  was  no  evidence  that  the  iron  of  which 
the  axle  in  question  was  made,  or  the  axle  itself,  was  subjected  to  this 
test. 

At  the  close  of  the  evidence,  the  counsel  for  the  defendant  requested 
the  court  to  charge  the  jury  that  if  the  defendant  exercised  all  the 
care  and  diligence  which  it  could  reasonably  exercise  in  providing  a  safe 
track  and  a  safe  engine  and  cars,  and  properly  supplied  its  train  with 
a  suitable  number  of  competent  and  faithful  men  to  take  chaige  of  the 
train,  and  those  men  managed  the  train  in  a  careful  and  skilful  manner, 
the  defendant  is  not  liable.     The  court  did  so  charge. 

The  counsel  for  the  defendant  also  asked  the  court  to  charge  that 
the  defendant  was  only  bound  to  have  its  cars  constructed  in  the  manner 
then  commonly  in  use,  and  then  deemed  sufficient  and  safe ;  the  fact 
that  it  had  not  adopted  the  safety-beam,  or  any  otlier  invention,  new  or 
old,  which  was  not  then  in  use  or  deemed  necessary  by  careful  persons 


1G4  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 

Hegeman  v.  Western  Railroad  Corporation. 

in  the  same  pursuits  in  the  defendant's  locality,  is  not  evidence  of  hegli- 
gence.  The  court  declined  so  to  charge ;  but,  in  response  ia  this 
request,  did  charge,  in  substance,  that  the  omission  to  adopt  the  safety- 
beam  was  not,  j^er  se,  necessarily  evidence  of  negligence,  but  that  the 
question  of  negligence  was  for  the  jui-y,  and  did  not  depend  upon  what 
others  deemed  necessary,  but  what  the  jury  should  believe  the  defend- 
ant had  reason  to  suppose,  and  ought,  under  the  circumstances  proved, 
to  have  linown,  was  necessary  to  the  safety  of  passengers ;  that  the 
usual  mode  of  constructing  cars  in  the  defendant's  locality  was  proper 
to  be  considered  by  the  jury  with  the  other  circumstances,  but  was 
not  necessarily  controlling.  To  this  refusal  of  the  court  to  charge 
as  requested,  and  to  the  charge  as  given,  the  counsel  for  the  defendant 
excepted. 

The  counsel  for  the  defendant  also  asked  the  court  to  charge  that, 
in  respect  to  the  breaking  which  is  complained  of,  the  defendant 
cannot  be  held  guilty  of  negligence  if  it  purchased  the  axle  from  manu- 
facturers having  a  high  character  for  the  excellence  and  safety  of  the 
axles  manufactured  and  sold  by  them,  and  the  defendant  used  such 
care  and  skill  in  searching  for  defects  as  is  characteristic  of  cautious 
persons  engaged  in  the  same  pursuit,  even  though  defects  did  exist 
such  as  caused  the  breaking  by  which  the  plaintiff  was  injured,  provided 
such  defects  could  not  be  discovered  on  such  examination.  The  court 
declined  so  to  cliarge,  but  instructed  the  jury  that  the  defendant  was 
responsible  for  an}'  defects  which  wei'e  known  to  the  manufacturer,  or 
which  might  have  been  discovered  by  him  upon  a  vigilant  and  careful 
examination  of  the  axle,  or  which,  after  delivery,  might  have  been  dis- 
covered upon  a  like  examination  b}'  a  competent  person ;  that  the  repu- 
tation of  the  manufacturer  should  be  taken  into  consideration  with  the 
other  circumstances,  but  would  not  alone  absolve  the  defendant  from 
responsibilit}'.  To  this  refusal  to  charge  as  requested,  and  to  the  charge 
as  given,  the  defendant's  counsel  excepted. 

The  counsel  for  the  defendant  requested  the  court  to  instruct  the 
jury  that  the  defendant,  under  the  circumstances  of  this  case,  was  not 
liable  for  any  defect  which  existed  in  the  axle,  if  such  defect  was  not 
discoverable  after  the  purchase  of  the  car  and  axle,  upon  such  exami- 
nations as  are  characteristic  of  cautious  persons  engaged  in  the  same 
pursuit  as  the  defendant.  The  court  declined  to  do  so,  but  charged  the 
jury  that,  as  to  the  materials  of  which  the  axle  was  made,  if  they  were 
not  of  a  proper  quality,  or  wrought  in  a  proper  manner,  and  the  defects 
were  of  that  character  that  they  could  have  been  discovered  upon  a 


LATENT    DEFECTS    IN    HIS    VEHICLE.  165 

Court  of  Appeals  of  New  York. 

vigilant  examination  by  a  person  of  competent  skill,  either  at  the  time 
of  the  construction  or  afterwards,  then  the  defendant  was  responsible 
for  the  consequences ;  and  the  counsel  for  the  defendant  excepted. 

The  defendant's  counsel  also  asked  the  court  to  charge  the  jury  that 
in  making  the  careful  examinations  required  by  law,  before  the  train 
started,  the  defendant  was  not  guilty  of  negligence  if  it  made  all  the 
examinations  which  human  skill  and  foresight  could  make  without 
taking  the  machinery  to  pieces ;  and  the  court  did  so  charge. 

The  court  also,  among  other  things,  charged  the  juiy  that  the  defend- 
ant, under  the  circumstances  of  this  case,  was  responsible  for  all  defects 
in  the  axle  by  the  breaking  of  which  the  injury  to  the  plaintiff  occurred, 
and  which  might  have  been  discerned  and  remedied,  to  the  same  extent 
as  if  it  had  manufactured  said  axle  in  its  own  workshop  and  by  its  im- 
mediate agents. 

The  court  also  charged  the  jury  that  although  the  defendant  pur- 
chased its  axles  and  cars  of  extensive  and  skilful  manufacturers,  who, 
in  the  exercise  of  their  skill  in  the  manufacture,  knew  of  no  test  and 
used  no  test  to  discover  latent  defects  in  axles,  yet  if  there  was  any 
test  known  to  others,  and  which  should  have  been  known  and  employed 
by  the  manufacturers  as  men  professing  skill  in  their  particular  busi- 
ness, although  the  same  may  not  have  been  used  by  some  others  engaged 
in  the  same  business  of  manufacturing  cars  and  axles,  defendant  was 
guilty  of  negligence  in  not  using  this  test,  provided  the  injury  occurred 
to  the  plaintiff  by  reason  of  a  defect  which,  by  such  test,  might  have 
been  discerned. 

The  court  also  charged  the  jury  that  if  they  should  be  of  the  opinion 
that  a  safety-beam  was  designed  and  calculated  to  prevent  an  injury  to 
passengers  in  case  of  the  breaking  of  an  axle,  it  did  not  necessarily 
follow  that  the  defendant  was  liable  because  it  had  not  adopted  it,  but 
it  would  be  for  the  jury  to  say  wiiether  the  defendant  was  or  was  not 
negligent  in  informing  itself  of  the  necessity  and  utility  of  the  inven- 
tion and  availing  itself  of  it,  taking  into  consideration  the  vigilance 
required  of  carriers  of  passengers  for  hire,  and  of  the  publicity  of  the 
invention,  and  of  its  use  prior  to  and  at  the  time  of  the  injury;  that 
it  was  no  apology  that  the  safety-beam  was  not  in  use  by  the  New 
England  railroads  or  by  any  other  particular  roads.  The  counsel  for 
the  defendant  duly  excepted  to  each  portion  of  the  foregoing  charge, 
which  was  not  in  accordance  with  the  requests  made  to  the  court,  above 
stated. 

The  jury  rendered  a  verdict  in  favor  of  the  plaintiff,  and  assessed  his 
damages  at  $9,900.     Judgment  was  rendered  upon  the  verdict.     The 


166  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 

Hegeman  v.  Western  Kailroad  Corporation. 

defendant  thereupon  moved,  in  the  Supreme  Court,  sitting  in  the  Tliird 
District,  for  a  new  trial, 

David  L.  Seymour,  for  the  plaintiff,  M.  I.  Totvnsend,  for  the  de- 
fendants. 

The  opinion  of  the  court'  (consisting  of  Watson,  Wright,  and 
Harris,  JJ.  )  was  delivered  by  — 

Harris,  J.  —  The  defendants  were  carriers  of  passengers,  and  as 
such  were  bound  to  conduct  their  business  with  all  the  care  which 
human  prudence  and  skill  could  suggest.  Any  thing  short  of  this 
would  make  them  liable  for  the  consequences.  Having  the  exclusive 
management  and  control  of  their  ears  and  road,  it  was  presumabK' 
that  no  accident  would  occur  without  some  neglect,  or  want  of  skill  or 
foresight.  An  accident  having  occurred,  and  the  plaintiff  having  been 
injured  by  means  of  such  accident,  a  prima  facie  case  of  negligence 
was  made  out,  which,  unless  it  should  be  overcome  by  proof  on  the 
part  of  the  defendants  showing  that  they  had  been  wholly  faultless, 
would  entitle  the  plaintiff  to  recover  compensation  for  the  injury  he  had 
sustained.^ 

This  burden  of  proof  was  assumed  by  the  defendants.  They  gave 
evidence  to  show  that  they  had  purchased  the  car  from  a  manufacturer 
of  high  reputation  for  the  excellence  and  safetj-  of  the  cars  manufac- 
tured by  him ;  and  that,  after  emplojang  all  reasonable  care  and  skill 
for  the  purpose  of  detecting  any  defect  in  the  machinery,  the  defect  in 
the  axle,  which  was  the  cause  of  the  accident,  had  remained  undis- 
covered, and  in  fact  could  not  be  discovered  bj'  means  of  any  examina- 
tion which  the  defendants  were  able  to  make. 

The  rule  of  law  applicable  to  the  evidence,  upon  this  branch  of  the 
case,  was  very  accurately  stated  by  the  learned  judge  at  the  circuit. 
After  having  distinctly  laid  down  the  general  proposition  that  the 
defendants  were  not  liable  if  they  had  exercised  all  reasonable  care  and 
dihgence  in  providing  a  safe  track  and  a  safe  engine  and  cars,  and  had 
properly  supplied  their  train  with  a  suitable  number  of  competent  and 
faithful  men  to  take  charge  of  the  train,  and  those  men  had  managed  it 
in  a  careful  and  skilful  manner,  he  proceeded  to  say,  in  respect  to  the 
defect  in  the  axle,  that  the  defendants  were  responsible  for  this  defect 
to  the  same  extent  as  if  the  axle  had  been  manufactured  bj'^  thenisehes. 
Of  the  soundness  of  this  rule  I  think  there  can  be  no  doubt.  From  the 
very  necessity  of  the  case,  the  defendants  are  obliged  to  carry  on  their 
business  through  the  instrumentality  of  agents.     Some  are  emplo}  ed  to 

»  16  Barb.  353.  «  Holbrook  v.  Utica  etc.  K.  Co.,  16  Barb.  113,  and  cases  there  cited. 


LATENT    DEFECTS    IN    HIS    VEHICLE.  167 


Court  of  Appeals  of  New  York. 

g . — , 

construct  or  keep  in  repair  their  roadway ;  others  to  construct  or  repair 
their  engines  and  cars  ;  and  others,  again,  to  opei'ate  such  engines  and 
cars  upon  the  road.  For  neglect  or  want  of  skill  in  any  of  these,  the 
defendants,  as  principals,  are  answerable  to  third  persons.  Whether 
the  engine  or  car  which  they  place  upon  the  road  for  the  purpose  of 
carrying  passengers  has  been  manufactured  in  their  own  workshops  by 
agents  employed  directly  for  that  purpose,  or  by  a  manufacturer  engaged 
in  the  business  of  supplying  such  articles  for  sale,  they  are  alike  bound 
to  see  that  in  the  construction  no  care  or  skill  has  been  omitted,  for  the 
purpose  of  making  such  engine  or  car  as  safe  as  care  and  skill  can 
make  it.  "When  such  care  and  skill  have  been  exercised,  the  defendants' 
duty  in  this  respect  has  been  discharged.  If,  on  the  other  hand,  a 
defect  exist  in  the  construction,  which  might  have  been  detected  and 
I'emedied,  they  are  answerable  for  the  consequences. ^  In  the  latter 
case,  an  injur}'  had  happened  to  a  passenger  in  a  stage-coach,  by  reason 
of  an  original  defect  in  the  construction  of  an  axletree.  Alderson,  J., 
said:  "A  coach  proprietor  is  liable  for  all  defects  in  his  vehicle  which 
can  be  seen  at  the  time  of  construction,  as  well  as  for  such  as  may 
exist  afterwards  and  be  discovered  on  investigation ;  if  not,  he  might 
buy  ill-constructed  or  unsafe  vehicles  and  his  passengers  be  without 
remedy."  Park,  J.,  said:  "This  was  entirely  a  question  of  fact.  It 
is  clear  that  there  was  a  defect  in  the  axletree,  and  it  was  for  the  jury 
to  say  whether  the  accident  was  occasioned  by  what,  in  law,  is  called 
negligence  in  the  defendant,  or  not." 

The  cases  bearing  upon  this  question,  both  English  and  American, 
have  been  examined  with  great  clearness  and  ability  in  Ingalls  v.  Bills.^ 
The  doctrine  stated  by  Mr.  Justice  Hubbard,  who  pronounced  the 
judgment  of  the  court  in  that  case,  as  the  result  of  his  examination,  is 
that,  "if  an  accident  happens  from  a  defect  in  the  coach,  which  might 
have  been  discovered  and  remedied  upon  the  most  careful  and  thorough 
examination  of  the  coach,  such  accident  must  be  ascribed  to  negligence. 
On  the  other  hand,  if  the  accident  arises  from  a  hidden  and  internal 
defect,  which  a  careful  and  thorough  examination  would  not  disclose, 
and  which  could  not  be  guarded  against  by  the  exercise  of  a  sound  judg- 
ment and  the  most  vigilant  oversight,  then  the  proprietor  is  not  liable." 
The  question  of  liability  is  here  put  upon  its  true  foundation.  It  is  a 
question  of  negligence,  not  of  warranty;  a  question  for  the  jury,  not 
for  the  court.  It  being  ascertained  that  the  accident  which  resulted  in 
the  injury  for  which  the  action  is  brought  was  caused  by  a  defect  in  the 

>  Citing  Ang.  on  Car.,  §  435  ;  Sharp  v.  Grey,  9  Bing.  457.  «  9  Mete.  1,  ante,  p.  112. 


168  LIABILITY    OF    THE    CARRIER   TOR    NEGLIGENCE. 

Hogemau  v.  Western  Railroad  Corporation. 

construction  of  the  vehicle,  it  must  then  be  referred  to  the  jury  to  say, 
upon  the  evidence,  whether  "the  defect  might  have  been  discovered 
upon  a  careful  and  thorough  examination,"  or  whether  it  was  so  hidden 
that  "the  most  careful  and  thorough  examination  would  not  have  dis- 
closed it."  The  charge  of  the  learned  judge  who  tried  this  case  was  in 
conformity  with  this  rule.  The  jury  wei'e  instructed  that,  in  respect  to 
the  defect  in  the  axle,  the  defendants'  liability  would  depend  upon  the 
question  whether  the  defect  was  of  such  a  character  that  it  "  could  have 
been  discovered  upon  a  vigilant  examination  by  a  person  of  competent 
skill,  either  at  the  time  of  construction  or  afterwards."  The  true  test 
of  the  defendants'  liability,  upon  this  branch  of  the  case,  was  thus  pre- 
sented. 

But  the  plaintiff,  without  regard  to  the  question  arising  upon  the 
defect  in  the  axle,  had  insisted  that  the  defendants  were  liable  by  reason 
of  their  omission  to  provide  the  car  with  a  safety-beam.  Evidence  had 
been  given  to  show  that  this  improvement  had  been  extensively  known 
and  used  prior  to  the  time  when  the  accident  happened,  and  also  to 
show  its  utility  as  a  safeguard  against  accidents.  The  evidence,  though 
objected  to,  was  properly  received.  The  defendants  were  bound  to 
use  every  precaution  which  human  skill  and  foresight  could  suggest 
to  insure  the  safety  of  their  passengers.  If,  then,  it  could  be  shown 
that  the  safety-beam  was  an  article  of  such  established  utility  and  so 
extensively  known  that  it  ought  to  have  been  used  by  the  defendants 
upon  their  cars,  they  might  justly  be  charged  with  negligence  in  not 
.adopting  it.  The  judge  was  right,  therefore,  not  only  in  receiving  the 
evidence,  but  in  submitting  it  to  the  jury  to  say  whether,  "taking  into 
consideration  the  vigilance  required  of  carriers  of  passengers,  and  the 
publicity  of  the  invention,  and  of  its  use  prior  to  the  time  of  the  injury, 
the  defendants  were  or  were  not  negligent  in  not  informing  themselves 
of  the  utility  and  necessity  of  the  invention  and  availing  themselves  of  it." 

Nor  do  I  think  the  court  is  called  upon  to  interfere  on  the  ground 
of  excessive  damages.  It  is  true  the  damages  awarded  by  the  jurj- 
seem  quite  ample,  being  nearly  twice  the  amount  which  could  have  been 
recovered  if  the  plaintiff  had  been  actually  killed.  It  must  also  be 
conceded  that,  though  the  jury  have  found  the  defendants  chargeable 
with  negligence,  it  was  not  a  case  of  very  gross  negligence.  Indeed, 
the  evidence  shows  no  want  of  ordinary  care  on  the  part  of  the  defend- 
ants. It  is  only  because  the  defendants  were  bound  to  conduct  their 
business  with  the  greatest  possible  care  and  caution  that  they  were 
made  liable  at  all.  But,  on  the  other  hand,  the  case  shows  that  the 
injury  sustained  by  the  plaintiff  is  entirely  beyond  any  pecuniary  esti- 


LATENT    DEFECTS    IN    HIS    VEHICLE.  IGO* 

Court  of  Appeals  of  New  York. 

mate.  An  artisan  engaged  in  business,  he  was  confined  to  his  bed  for 
several  months,  and,  from  the  nature  of  his  injuries,  must  have  been 
the  subject  of  extreme  pain  and  suffering.  Up  to  the  time  of  the  trial 
he  had  scarcely  been  able  to  leave  his  house,  and  so  permanent  are  his 
injuries  that  it  is  not  probable  he  will  ever  again  possess  the  ability  to- 
provide  for  the  support  of  himself  or  his  family.  Under  such  circum- 
stances, it  cannot  be  said  that  the  damages  awarded  by  the  jury  are  sa 
excessive  as  to  call  for  the  interference  of  the  court.  The  motion  for 
a  new  trial  should  therefore  be  denied. 

New  trial  denied. 

From  this  decision  the  defendants  appealed  to  the  Court  of  Appeals,, 
where  the  cause  was  again  argued  by  — 

John  H.  Reynolds,  for  the  appellant,  and  David  L.  Seymour^  for  the 
respondent. 

The  opinion  of  the  court  was  delivered  by  — 

Gardiner,  C.  J.  —  It  has  been  said  that  every  wayfarer  must  take 
the  risks  incident  to  the  mode  of  travel  he  adopts ;  but  these  risks  are 
only  those  which  cannot  be  avoided  by  the  carrier  of  passengers  by  the 
utmost  degree  of  care  and  skill  in  the  preparation  and  management 
of  the  means  of  convej'ance.^  The  carrier,  in  the  language  of  other 
judges,  is  bound  to  use  all  precautions,  as  far  as  human  care  and 
foresight  will  go,  for  the  safety  of  his  passengers. ^  In  the  applica- 
tion of  these  principles,  it  is  obvious  that  the  same  precautions  will 
not  exonerate  the  carrier  of  passengers  fi'om  responsibility  in  every 
mode  of  travel.  The  foresight  and  preparation  that  would  suffice  ta 
satisfy  the  rule  in  one  species  of  navigation  or  conveyance,  would  not 
answer  in  another ;  and  the  external  examination  which,  in  connection 
with  the  reputation  of  the  builder  of  a  stage-coach,  would  and  ought  to 
satisfy  the  scruples  of  the  most  cautious  person  as  to  the  safety  and 
security  of  a  vehicle  designed  to  run  from  six  to  eight  miles  the  hour, 
would  not  satisfy  any  reasonable  man  as  to  the  sufficiency  of  another, 
intended  to  sustain  a  far  greater  weight,  and  to  be  propelled  by  steam 
thirty,  forty,  or  fifty  miles  in  the  same  time.  The  charge  of  the 
learned  judge  at  the  trial  assumes  and  proceeds  upon  this  distinction 
throughout ;  and  in  that  part  of  it  where  he  gives  the  measure  of  the 
responsibility  of  the  defendant,  in  the  strongest  terms  against  him  and 
in  favor  of  the  plaintiff,  he  says,  "  that  although  the  defendant  purchased 
his  axles  and  cars  of  extensive  and  skilful  manufacturers,  who,  in  the 

1  Ang.  on  Car.,  §  6^.  •  8  Kent's  Comm.  (7th  ed.)  602,  and  cases  cited. 


170  LIABILITY    or    THE    CARRIER    FOR    >!EGIJGENCE. 

Hegeman  v.  Western  Railroad  Corporation. 

exercise  of  their  skill,  knew  of  no  test  and  used  no  test  to  discover 
latent  defects  in  axles,  yet  if  there  were  any  tests  known  to  others^  and 
which  should  have  been  known  and  employed  by  the  manufacturers  as 
inen  professing  skill  in  their  particular  business,  although  the  same 
may  not  have  been  used  by  some  others  engaged  in  the  same  business, 
defendant  was  guilty  of  negligence  in  not  using  this  test,  provided  the 
injury  occurred  to  the  plaintiff  by  reason  of  a  defect  which,  by  such 
test,  might  have  been  discovered."  The  substance  of  the  charge  was, 
that  although  the  defect  was  latent,  and  could  not  be  discovered  by  the 
most  vigilant  external  examination,  yet  if  it  could  be  ascertained  by  a 
known  test,  applied  either  by  the  manufacturer  or  the  defendant,  the 
latter  was  responsible. 

In  these  instructions  there  was  no  error.  Ingalls  v.  Bills,^  cited  by 
the  defendant's  counsel,  was  the  case  of  a  stage-coach,  in  which  the 
injury  was  occasioned  by  the  breaking  of  the  axle.  The  fracture  was 
internal,  and  surrounded  by  sound  iron  one-quarter  of  an  inch  thick. 
The  court  held  that  where  the  accident  arises  from  a  hidden  and  internal 
defect,  and  which  could  not  be  guarded  against  by  the  exercise  of  a 
sound  judgment  and  the  most  vigilant  oversight,  then  the  proprietor 
was  not  liable  for  the  injury.  I  concur  in  that  decision,  in  the  par- 
ticular case  presented;  but  the  learned  judge  did  not  intimate  "that 
a  sound  judgment  and  the  most  vigilant  oversight"  would  be  evidenced 
by  the  adoption  of  the  same  methods  of  examination  in  the  case  of 
a  stage-coach  and  a  car  for  the  express-train  of  a  railroad.  The 
mode  of  construction,  the  purposes  to  be  subserved,  and,  above  all, 
the  probable  consequences  of  a  hidden  defect,  in  the  two  cases  are 
altogether  diffei'ent.  It  might  as  plausibly  be  urged  that  a  chain  for 
agricultural  purposes  and  the  cable  of  a  ship  of  the  line  should  be 
subjected  to  the  same  tests,  because  both  were  chains  and  each  manu- 
factured of  the  same  material.  Keeping  the  distinction  indicated  in 
view,  the  charge  was  sufficiently  favorable  to  the  defendant. 

Two  questions  were  presented  for  the  consideration  of  the  jur}': 
Jirst,  Was  there  a  test  known  to  and  used  by  others,  and  which  should 
have  been  known  to  a  skilful  manufacturer,  by  which  the  concealed 
defect  in  the  axle  of  the  car  could  have  been  detected?  and  if  so,  then, 
secondly,  Was  the  injury  to  the  plaintiff  the  consequence  of  that  imper- 
fection? There  was  evidence  tending  to  establish  these  facts,  which 
the  jury  have  found ;  and  the  question  returns,  Can  the  defendant,  who 

1  9  Mete.  1,  ante,  p.  112. 


lat!:nt  defects  in  his  vehicle.  171 

Court  of  Appeals  of  New  York. 

neither  applied  the  test,  nor  caused  it  to  be  applied  by  the  manufacturer, 
insist  that  this  accident  "  could  not  have  been  avoided  by  the  utmost 
degree  of  care  and  skill  in  the  preparation  of  the  means  of  convey- 
ance," or  "that  they  used  all  precautions,  as  far  as  human  care  and 
foresight  would  go,  for  the  safety  of  the  plaintiff  as  one  of  their  pas- 
sengers"? It  seems  to  me  that  there  can  be  but  one  answer  to  the 
question. 

It  was  said  that  carriers  of  passengers  are  not  insurers.  This  is 
true.  That  they  were  not  required  to  become  smelters  of  iron  or 
manufacturers  of  cars,  in  the  prosecution  of  their  business.  This  also 
must  be  conceded.  What  the  law  does  require  is  that  they  shall  fur- 
nish a  sufficient  car  tcf  secure  the  safety  of  their  passengers,  by  the 
exercise  of  the  "•  utmost  care  and  skill  in  its  preparation."  They  may 
construct  it  themselves,  or  avail  themselves  of  the  services  of  others ; 
but  in  either  case  they  engage  that  all  that  well-directed  skill  can  do 
has  been  done  for  the  accomplishment  of  this  object.  A  good  repu- 
tation upon  the  part  of  the  builder  is  very  well  in  itself,  but  ought  not 
to  be  accepted  by  the  public,  or  the  law,  as  a  substitute  for  a  good 
vehicle.  What  is  demanded,  and  what  is  undertaken  by  the  corpora- 
tion, is  not  merely  that  the  manufacturer  had  the  requisite  capacity, 
but  that  it  was  skilfully  exercised  in  the  particular  instance.  If  to  this 
extent  "they  are  not  responsible,  there  is  no  security  for  individuals  or 
the  public. 

It  is  perfectly  understood  that  latent  defects  may  exist  undiscoverable 
by  the  most  vigilant  examination,  when  the  fabric  is  completed,  from 
which  the  most  serious  accidents  have  and  may  occur.  It  is  also  well 
known,  as  the  evidence  in  this  suit  tended  to  prove  and  the  jury  have 
found,  that  a  simple  test — that  of  bending  the  iron  after  the  axle  was 
formed,  and  before  it  was  connected  with  the  wheel  —  existed  by  which 
it  could  be  detected.  This  should  have  been  known  and  applied  by  men 
"professing  skill  in  that  particular  business."  It  was  not  known,  or, 
if  known,  was  not  applied  by  these  manufacturers.  It  was  not  used 
by  the  defendant,  nor  did  they  inquire  whether  it  had  been  used  by  the 
builders.  They  relied  upon  an  external  examination,  which  they  were 
bound  to  know  would  not,  however  faithfully  prosecuted,  guard  their 
passengers  against  the  danger  arising  from  concealed  defects  in  the 
iron  of  the  axles,  or  in  the  manufacture  of  them.  For  this  omission  of 
duty,  or  want  of  skill,  the  learned  judge  held,  and  I  think  correctly, 
that  they  were  liable. 

This  is  the  only  important  question  in  the  cause.  The  requests  of 
the  defendant's  counsel  to  the  judge  for  instructions  to  the  juiy,  were 


172  LIABILITY    OF    THE    CARRIER   FOR   NEGLIGENCE. 

Hegeman  v.  Western  Railroad  Corporation. 

intended  to  present  this  principal  point  in  its  strongest  aspect  for  the 
defendant ;  and  all  the  exceptions  are  determined,  if  the  above  sugges- 
tions are  well  founded. 

The  evidence  of  the  utility  and  use  of  the  safety-beam  was  properly 
admitted.  It  had  been  used  in  New  Jersey  eleven  years  before  this 
accident,  and  upon  some  of  the  Albany  and  Buffalo  roads  from  the 
latter  part  of  the  year  1846,  and  in  1851  was  introduced  upon  the  road 
of  the  defendant.  Whether  the  adoption  of  this  improvement,  under 
all  the  circumstances,  was  a  necessary  or  proper  precaution  on  the  part 
of  the  defendant,  was  correctly  submitted  to  the  jury. 

The  judgment  of  the  vSupreme  Court  should  be  affirmed. 

Johnson,  Hand,  Cbippen,  and  Dean,  JJ.,  concurred  in  the  foregoing^ 
opinion. 

Marvin,  J.  (dissenting).  —  In  his  charge,  the  learned  justice  first  told 
the  jury  that  if  the  defendant  exercised  all  the  care  and  diligence  which 
he  [they]  could  reasonably  exercise  in  providing  a  safe  track  and  a  safe 
engine  and  cars,  and  properly  supplied  their  train  with  a  suitable  num- 
ber of  competent  and  faithful  men  to  take  charge  of  it,  and  those  men 
managed  the  train  in  a  careful  and  skilful  manner,  the  defendant  was 
not  liable.  This  instruction  was  given  in  the  form  desired  by  the 
defendant.  In  a  subsequent  part  of  the  charge,  the  judge  instructed 
the  jury  that  the  defendant  was  responsible  for  any  defects  which  were 
known  to  the  manufacturer,  or  which  might  have  been  discovered  by 
him  upon  a  vigilant  and  careful  examination  of  the  axle,  or  which,  after 
delivery,  might  have  been  discovered  upon  a  like  examination  by  a 
competent  person;  that  the- reputation  of  the  manufacturer  should  be 
taken  into  consideration  with  the  other  circumstances,  but  would  not 
alone  absolve  the  defendant  from  responsibilities.  The  defendant  ex- 
cepted to  this  part  of  the  charge. 

The  car,  the  axle  of  which  was  broken,  was  manufactured  by  the 
Springfield  Car  and  Engine  Company  for  the  defendant.  This  company 
:nanufactured  cars  for  many  railroad  companies.  It  procured  the 
axle  that  broke  in  the  present  case  from  Ames's  factory,  an  extensive 
manufactory  of  iron.  I  do  not  understand  that  the  Springfield  Car 
and  Engine  Company,  or  Ames  or  his  factory,  were  in  any  sense  the 
servants  or  agents  of  the  defendant.  The  latter  worked  in  iron,  and  made 
axles  and  sold  them  to  the  manufacturers  of  cars  or  to  railroad  com- 
panies; and  the  former  manufactured  to  order,  cars,  etc,  for  railroads. 
As  I  understand  the  charge,  the  defendant  was  to  be  held  responsible 
for  any  defects  in  the  axle  which  were  known  to  the  manufacturer,  or 
which  might  have  been  discovered  by  him  upon  a  vigilant  and  careful 


LATENT  DEFECTS  IN  HIS  VEHICLE.  173 

Court  of  Appeals  of  New  York. 

•examination ;  it  is  added,  "  or  which,  after  delivery,  might  have  been 
discovered  upon  a  like  examination  by  a  competent  person."  The 
judge  further  charged  that,  as  to  the  materials  of  which  the  axle  was 
made,  if  the}^  were  not  of  a  proper  quality,  or  wrought  in  a  proper 
manner,  and  the  defects  were  of  that  character  that  they  could  have 
been  discovered  upon  a  vigilant  examination  by  a  person  of  competent 
skill,  either  at  the  time  of  the  construction  or  afterwards,  then  the 
defendant  was  responsible  for  the  consequences.  He  also  charged  that 
the  defendant  was  responsible  for  all  defects  in  the  axle,  which  might 
have  been  discovered  and  remedied,  to  the  same  extent  as  if  the  defend- 
ant had  manufactured  said  axle  in  its  own  workshop  and  by  its  imme- 
diate agents.  The  charge  takes  the  position  that  the  defendant  was 
responsible  for  an}-  defect  in  the  axle,  whether  of  materials,  workman- 
ship, or  otherwise,  which  were  known,  or  might  have  been  discovered  by 
the  manufacturer  upon  a  vigilant  and  careful  examination  at  the  time 
of  construction  or  afterwards.  In  other  words,  the  defendant  was 
made  surety  for  the  skill  and  extraordinary  care  and  vigilance  of  the 
manufacturers ;  and  if,  in  fact,  a  defect  existed  or  happened  at  the  time 
of  construction,  which  could  have  been  detected  by  the  manufacturer, 
though  such  defect  was  secret  at  the  time  the  defendant  purchased  and 
used  the  axle,  and  not  discoverable,  still  the  defendant  would  be  liable 
for  the  want  of  care  on  the  part  of  the  manufacturer.  In  my  opinion, 
this  position  cannot  be  sustained  unless  we  are  prepared  to  hold  that 
railroad  companies  shall  be  held  liable  for  all  defects,  whether  discover- 
able or  not;  thus  making  them  warrantors  of  the  roadworthiness  of 
their  cars,  etc.  The  manufacturers  of  the  axle  and  the  car  were  not 
the  servants  or  agents  of  the  defendant ;  they  pursued  an  independent 
business,  and  for  any  want  of  care  or  skill,  or  for  negligence,  they  were 
liable.  It  would,  in  my  opinion,  be  very  dangerous  to  establish  the 
rule  that  he  who  purchases  and  uses  an  article  manufactured  by  a 
mechanic  shall  be  responsible  for  any  injury  to  third  persons  in  conse- 
quence of  a  defect  in  the  article,  not  discoverable  by  the  purchaser  and 
user.  Such  a  principle  would  be  far-reaching,  and  it  is  not  possible 
now  to  consider  and  fix  a  limit  to  the  cases  to  which  it  would  apply.  It 
goes  entirely  beyond  the  rule  making  every  one  responsible  for  his  own 
neffligence  and  the  negligence  of  his  servants  and  agents. 

In  Stevens  v.  Armstrong,^  it  was  held  by  this  court  that  to  render  one 
person  liable  for  the  negligence  of  another,  the  relation  of  master  and 
servant  or  principal  and  agent  must  exist  between  them.     In  the  pres- 

»  6  N.  Y.  435. 


174  LIABILITY    or    THE    CARRIER    FOR    NEGLIGENCE. 

Hegeraan  v.  Western  Railroad  Corporation. 

ent  case,  it  is  argued  that  the  charge  of  the  judge  is  not  in  conflict  with 
the  case  just  cited;  that  it  does  not  make  the  defendant  liable  for  the 
negligence  of  the  manufacturer,  but  for  its  own  neglect  in  not  doing, 
or  causing  to  be  done,  what  human  care  and  foresight  could  have  done 
to  discover  and  remedy  the  defect  in  the  construction  of  the  car  in 
question.  Does  not  this  proposition  involve  the  responsibility  of  the 
defendant  for  any  want  of  care  or  for  any  neglect  in  the  manufacturer, 
though  such  want  of  care  or  neglect  could  not  be  detected  after  the  car 
was  completed  and  when  it  was  put  in  use?  As  I  understand  the  judge, 
he  made  the  defendant  liable  for  any  defect  happening  during  the  con- 
struction of  the  car  and  axle  which  could  have  been  detected  by  the 
manufacturer,  though  it  could  not  be  detected  by  the  defendant  after 
the  car  and  axle  were  completed.  I  agree  that  the  defendant  should  be 
held  to  the  exercise  of  the  utmost  care  and  diligence.  I  think  in 
Ingalls  v.  Bills  ^  the  proper  distinction  was  made  and  the  true  prin- 
ciples were  established.  In  that  case,  decided  in  1845,  all  the  English 
cases  were  reviewed  and  the  American  cases  referred  to,  and  I  shall  con- 
tent myself  with  this  reference  to  that  case,  adopting  the  reasoning  of  the 
court  there  and  applying  it  to  the  present  case,  I  think  the  learned  judge 
erred  in  the  rule  of  responsibility,  and  that  there  should  be  a  new  trial. 

Denio,  J.  (dissenting). — I  understand  the  effect  of  the  charge  to 
be  that  the  defendant  is  responsible  in  the  same  manner  which  he 
would  be  if,  besides  managing  the  railroad,  he  was  also  the  manufac- 
turer of  his  cars,  and  of  all  the  parts  of  which  they  are  composed, 
including  the  axles.  The  workmen  of  the  iron  manufacturers  are  to  be 
regarded,  according  to  the  charge,  as  the  servants  of  the  railroad  com- 
pany, and  it  is  responsible  for  the  negligence  of  such  workmen  as  for 
that  of  its  immediate  agents  and  servants.  This,  I  think,  cannot  be 
sustained.  If  the  defendant  had  chosen  to  commit  to  others  the  doing 
of  things  which  its  charter  contemplated  should  be  performed  by  the 
company,  it  might  be  estopped  from  alleging  that  such  other  persons 
were  not  its  servants ;  but  the  manufacture  of  the  passenger-cars  is  a 
separate  and  distinct  business,  and  the  workmen  employed  in  construct- 
ing them  and  the  iron-work  composing  their  several  parts  are  not,  in 
my  opinion,  in  any  proper  sense  the  servants  of  the  railroad  corpora- 
tion. The  cases  upon  the  point  have  been  mentioned  by  Judge  Marvin, 
and  it  is  only  necessary  to  add  to  them  those  which  are  referred  to  in 
Smith's  Treatise  on  the  Law  of  Master  and  Servant,  at  p.  164  et  seq. 

I  am  in  favor  of  reversing  the  judgment  of  the  Supreme  Court. 

Judgment  affirmed. 

1  9  Mete.  1,  ante,  p.  112. 


Associate  Justices, 


LATENT  DEFECTS  IN  HIS  VEHICLE.  175 

Supi-eme  Court  of  the  United  States. 

4.  THE  SAME  SUBJECT,  IN  ITS  APPLICATION  TO  FREE  PASSENGEES. 

Steamboat  New  World  v.  King.* 
/Supreme  Court  of  the  United  States,  1853, 

Hon.  EoGER  B.  Taney,  Chief  Justice. 

"  John  McLean, 

"  James  M.  Wayne, 

**  John  Catron, 

"  Peter  V.  Daniel, 

**  Samuel  Nelson, 

*♦  Robert  C.  Grier, 

*'  Benjamin  R.  Curtis, 

"  John  A.  Campbell, 

1.  ITegligrent  Injury  to  Free  Passenger.  — Where  it  was  shown  to  be  cnstomary  for 

masters  of  steamboats  to  permit  persons  who  were  usually  employed  upon  steamboats 
to  ride  from  one  place  to  another  free,  it  was  held  that  a  person  who  had  been  an 
employee  on  the  particular  boat,  and  who  had  been  permitted  by  the  master  to  ride 
upon  it  without  paying  fare,  was  lawfully  thereon,  and  that  for  an  injury  done  him  by 
the  negligence  of  the  crew  in  the  management  of  the  steamboat,  he  was  entitled  to 
recover  damages. 

2.  Obligation  of  Carriers  of  Passengers  by  Steam. —The  following  language  of  the 

court  in  Philadelphia  and  Reading  Railroad  Company  \.  Derby  ^  is  reaffirmed:  "When 
carriers  undertake  to  convey  persons  by  the  powerful  but  dangerous  agency  of 
Bteam,  public  policy  and  safety  require  that  they  shall  be  held  to  the  greatest  possible 
care  and  diligence.  And  whether  the  consideration  for  such  transportation  be  pecu- 
niary or  otherwise,  the  personal  safety  of  passengers  should  not  be  left  to  the  sport  of 
chance  or  the  negligence  of  careless  agents.  Any  negligence  in  such  cases  may  well 
deserve  the  epithet  of  gross." 

3.  Degrees  of  Negligence.  — Per  Curtis,  J.:  The  theory  that  there  are  three  grades  of 

negligence  cannot  be  usefully  applied  in  practice. 

4.  Negligence  in  Employments  which  require  Skill.  — Whenever  a  person  under- 

takes an  employment  which  requires  skill,  whether  for  a  reward  or  gratuitously, 
a  failure  to  exert  the  measure  of  skill  appropriate  to  such  employment  is  culpable 
negligence,  and  for  damages  resulting  from  such  failure  an  action  lies. 

5.  Burden   of  Proof  under  Act  of  Congress   relating  to  Vessels  propelled  by 

Steam.  — Under  §  1:5  of  the  act  of  July  7,  18:}8  (5  Stats,  at  Large,  306),  if  a  person  is 
injured  on  board  a  steamboat  by  the  injurious  escape  of  steam,  it  is  incumbent  upon 
the  owners,  in  an  action  against  them,  to  prove  that  there  was  no  negligence. 

The  case  is  stated  in  tlie  opinion. 
CuUing,  for  the  appellants ;  Mayer,  contra. 

Mr.  Justice  Curtis  delivered  the  opinion  of  the  court. — This  is  an 
appeal  from  a  decree  of  the  District  Court  of  the  United  States  for  the 

•  Reported,  16  How.  469. 
'  Ante,  p.  31. 


176  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 

Steamboat  New  World  v.  King. 

Northern  District  of  California,  sitting  in  admiralty.  The  libel  alleges 
that  the  appellee  was  a  passenger  on  board  the  steamer  on  a  voyage 
from  Sacramento  to  San  Francisco,  in  June,  1851,  and  that,  while  navi- 
gating within  the  ebb  and  flow  of  the  tide,  a  boiler-flue  was  exploded 
through  negligence,  and  the  appellee  grievously  scalded  by  the  steam 
-ind  hot  water. 

The  answer  admits  that  an  explosion  occurred  at  the  time  and  place 
alleged  in  the  libel,  and  that  the  appellee  was  on  board  and  was  injured 
thereby,  but  denies  that  he  was  a  passenger  for  hire,  or  that  the  explo- 
sion was  the  consequence  of  negligence. 

The  evidence  shows  that  it  is  customary  for  the  masters  of  steam- 
boats to  permit  persons  whose  usual  employment  is  on  board  of  such 
boats  to  go  from  place  to  place  free  of  charge ;  that  the  appellee  had 
formerly  been  eraploAcd  as  a  waiter  on  board  this  boat,  and  just  before 
she  sailed  from  Sacramento  he  app*lied  to  the  master  for  a  free  passage 
to  San  Francisco,  which  was  granted  to  him,  and  he  came  on  board. 
It  has  been  urged  that  the  master  had  no  power  to  impose  any  obliga- 
tion on  the  steamboat  by  receiving  a  passenger  without  compensation. 
But  it  cannot  be  necessary  that  the  compensation  should  be  in  monej'^, 
or  that  it  should  accrue  directly  to  the  owners  of  the  boat.  If  the 
master  acted  under  an  authority  usually  exercised  by  masters  of  steam- 
boats, if  such  exercise  of  authority  must  be  presumed  to  be  known 
to  and  acquiesced  in  by  the  owners,  and  the  practice  is  even  indi- 
rectly beneficial  to  them,  it  must  be  considered  to  have  been  a  lawful 
exercise  of  an  authority  incident  to  his  command. 

It  is  proved  that  the  custom  thus  to  i*eceive  steamboatmen  is  general. 
The  owners  must  therefore  be  taken  to  have  known  it,  and  to  have 
acquiesced  in  it,  inasmuch  as  they  did  not  forbid  the  master  to  conform 
to  it.  And  the  fair  presumption  is  that  the  custom  is  one  beneficial  to 
tliemselves.  Any  privilege  generally  accorded  to  persons  in  a  particular 
employment  tends  to  render  that  employment  more  desirable,  and,  of 
course,  to  enable  the  employer  more  easily  and  cheaply  to  obtain  men 
to  supply  his  wants. 

It  is  true  the  master  of  a  steamboat,  like  other  agents,  has  not  an 
unlimited  authority.  He  is  the  agent  of  the  owner  to  do  only  what  is 
usually  done  in  the  particular  employment  in  which  he  is  engaged. 
Such  is  the  general  result  of  the  authorities. ^  But  different  employ- 
ments may  and  do  have  different  usages,  and  consequently  confer  on 
the   master   different   powers.     And    when,   as   in   this  case,  a   usage 

»  Smith  on  Merc.  Law,  559;  Grant  v.  Norway,  10  C.  B.  688;  s.  c.  2  Eng.  Law  &  Eq.  337;  Pope 
V.  Xickerson,  3  Story,  475;  Citizens'  Bank  v.  Nantucket  Steamboat  Co.,  2  Story,  32. 


LATENT  DEFECTS  IN  HIS  VEHICLE.  177 

Supreme  Court  of  the  United  States. 

appears  to  be  general,  not  unreasonable  in  itself,  and  indirectly  bene- 
ficial to  the  owner,  we  are  of  opinion  the  master  has  power  to  act 
under  it  and  bind  the  owner. 

The  appellee  must  be  deemed  to  have  been  lawfully  on  board  under 
this  general  custom. 

Whether  precisely  the  same  obligations  in  all  respects  on  the  part  of 
the  master  and  owners  and  their  boat  existed  in  his  case  as  in  that  of 
an  ordinary  passenger  paying  fai*e,  we  do  not  find  it  necessary  to  de- 
termine. In  Philadelphia  and  Reading  Railroad  Company  v.  Derby, ^ 
which  was  a  case  of  gratuitous  carriage  of  a  passenger  on  a  railroad, 
this  court  said:  "When  carriers  undertake  to  convey  persons  by  the 
powerful  but  dangerous  agency  of  steam,  public  policy  and  safety 
require  that  they  should  be  held  to  the  greatest  possible  care  and  dili- 
gence. And  whether  the  consideration  for  such  transportation  be 
pecuniary  or  otherwise,  the  personal  safety  of  passengers  should  not  be 
left  to  the  sport  of  chance  or  the  negligence  of  careless  agents.  Any 
negligence  in  such  cases  may  well  deserve  the  epithet  of  gross." 

We  desire  to  be  understood  to  reaffirm  that  doctrine,  as  resting  not 
only  on  public  policy,  but  on  sound  principles  of  law. 

The  theory  that  there  are  three  degrees  of  negligence,  described  \>y 
the  terms  slight,  ordinary,  and  gross,  has  been  introduced  into  the 
common  law  from  some  of  the  commentators  on  the  Roman  law.  It 
may  be  doubted  if  these  terms  can  be  usefully  applied  in  practice. 
Their  meaning  is  not  fixed,  or  capable  of  being  so.  One  degree,  thus 
described,  not  only  may  be  confounded  with  another,  but  it  is  quite 
impracticable  exactly  to  distinguish  them.  Their  signification  neces- 
sarily varies  according  to  circumstances,  to  whose  influence  the  courts 
have  been  forced  to  yield,  until  there  are  so  many  real  exceptions  that 
the  rules  themselves  can  scarcely  be  said  to  have  a  general  operation. 
In  Storer  v.  Gotven,^  the  Supreme  Court  of  Maine  say:  "How  much 
care  will,  in  a  given  case,  relieve  a  party  from  the  imputation  of  gross 
negligence,  or  what  omission  will  amount  to  the  charge,  is  necessarily 
a  question  of  fact,  depending  on  a  great  variety  of  circumstances, 
which  the  law  cannot  exactly  define."  Mr.  Justice  Story  says:^  "In- 
deed, what  is  common  or  ordinary  diligence  is  more  a  matter  of  fact 
than  of  law."  If  the  law  furnislies  no  definition  of  the  terms  gross 
negligence,  or  ordinary  negligence,  which  can  be  applied  in  prac- 
tice, but  leaves  it  to  the  jury  to  determine  in  each  case  what  the  duty 

>  14  How.  486,  ante,  p.  31.  »  18  Me.  177.  »  Story  on  Bail.,  S  IL 

12 


178  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 

Steamboat  New  World  v.  King. 

was,  and  what  omissions  amount  to  a  breacli  of  it,  it  would  seem  that 
imperfect  and  confessedly  unsuccessful  attempts  to  define  that  duty  had 
better  be  abandoned. 

Recentl}^  the  judges  of  several  courts  have  expressed  their  disap- 
probation of  these  attempts  to  fix  the  degrees  of  diligence  by  legal 
•  I'  rinitions,  and  have  complained  of  the  impracticabilit}'  of  applying 
Uiem.^  It  must  be  confessed  that  the  difficulty  in  defining  gross  negli- 
gence, which  is  apparent  in  perusing  such  cases  as  Tracy  v.  Wood  ^  and 
Foster  v.  The  Essex  Bank,^  would  alone  be  sufficient  to  justify  these 
complaints.  It  may  be  added  that  some  of  the  ablest  commentators  on 
the  Roman  law,  and  on  the  Civil  Code  of  France,  have  wholly  repudi- 
ated this  theory  of  three  degrees  of  diligence,  as  unfounded  in  principles 
of  natural  justice,  useless  in  practice,  and  presenting  inextricable  em- 
barrassments and  difficulties.^ 

But  whether  this  term,  gross  negligence,  be  used  or  not,  this  partic- 
ular case  is  one  of  gross  negligence,  according  to  the  tests  which  have 
been  applied  to  such  a  case. 

In  the  first  place,  it  is  settled  that  "  the  bailee  must  proportion  his 
care  to 'the  injiuy  or  loss  which  is  likely  to  be  sustained  by  any  improvi- 
dence on  his  part."  ^ 

It  is  also  settled  that  if  the  occupation  or  employment  be  one  requiring 
skill,  the  failure  to  exert  that  needful  skill,  either  because  it  is  not 
possessed  or  from  inattention,  is  gross  negligence.  Thus,  Heath,  J.,  in 
Shidls  V.  BlacJcburne,^  says:  "If  a  man  applies  to  a  surgeon  to  attend 
him  in  a  disorder  for  a  reward,  and  the  surgeon  treats  him  improperly, 
there  is  gross  negligence,  and  the  surgeon  is  liable  to  an  action ;  the 
surgeon  would  also  be  liable  for  such  negligence  if  he  undertook  gratis 
to  attend  a  sick  person,  because  his  situation  implies  skill  in  surgery." 
And  Lord  Loughborough  declares  that  an  omission  to  use  skill  is  gross 
negligence.  Mr.  Justice  Story,  although  he  controverts  the  doctrine 
of  Pothier,  that  any  negligence  renders  a  gratuitous  bailee  responsible 
for  the  loss  occasioned  by  his  fault,  and  also  the  distinction  made  by 
Sir  William  Jones  between  an  undertaking  to  carry  and  an  undertaking 
to  do  work,  yet  admits  that  the  responsibility'  exists  when  there  is  a  want 
of  due  skill,  or  an  omission  to  exercise  it.     And  the  same  may  be  said 


1  Wilson  V.  Brett,  11  Mee.  &  W.  113 ;  Wylde  *  See  Toullier's  Droit  Civil,  6th  voL,  p.  239, 
y.  Pickfoi-d,  8  Mee.  &  W.  443, 461,  462 ;  Hinton  etc.;  id.,  lltli  voL,  p.  '20.i,  etc.;  Mackeldey, 
V.  Dibbin,  2  Q.  B.  646,  651.  Man.  Du  Droit  Romain,  191,  etc. 

2  3  Mason,  132.  *  Story  on  Bail.,  §  15. 
8  17  Mass.  479.  «  1  H.  Black.  161. 


LATENT  DEFECTS  IN  HIS  VEHICLE.  179 

Supreme  Court  of  the  United  States. 

of  Mr.  Justice  Porter,  in  Percy  v.  Millaudnn.^  This  qualification  of 
the  rule  is  also  recognized  in  Stanton  v.  Bell.^ 

That  the  proper  management  of  the  boilers  and  machinery  of  a 
steamboat  requires  skill,  must  be  admitted.  Indeed,  by  the  act  of 
Congress  of  August  30,  1852,  great  and  unusual  precautions  are  taken 
to  exclude  from  this  employment  all  persons  who  do  not  possess  it. 
That  an  omission  to  exercise  this  skill  vigilantly  and  faithfull}',  endan- 
gers to  a  frightful  extent  the  lives  and  limbs  of  great  numbers  of 
human  beings,  the  awful  destruction  of  life  in  our  country  by  explo- 
sions of  steam-boilers  but  too  painfully  proves.  We  do  not  hesitate, 
therefore,  to  declare  that  negligence  in  the  care  or  management  of  such 
boilers,  for  which  skill  is  necessary,  the  probable  consequence  of  which 
negligence  is  injury  and  loss  of  the  most  disastrous  kind,  is  to  be 
deemed  culpable  negligence,  rendering  the  owners  and  the  boat  liable 
for  damages,  even  in  case  of  the  gratuitous  carriage  of  a  passenger. 
Indeed,  as  to  explosion  of  boilers  and  flues,  or  other  dangerous  escape 
of  steam  on  board  steamboats.  Congress  has  in  clear  terms  excluded  all 
such  cases  from  the  operation  of  a  rule  requiring  gross  negligence 
to  be  proved  to  lay  the  foundation  of  an  action  for  damages  to  person 
or  property. 

The  thirteenth  section  of  the  act  of  July  7,  1838,3  provides:  "That 
in  all  suits  and  actions  against  proprietors  of  steamboats  for  injury 
arising  to  persons  or  property  from  the  bursting  of  the  boiler  of  any 
steamboat,  or  the  collapse  of  a  flue,  or  other  dangerous  escape  of  steam, 
the  fact  of  such  bursting,  collapse,  or  injurious  escape  of  steam  shall 
be  taken  as  full  prima  facie  evidence  sutficient  to  charge  the  defendant, 
or  those  in  his  employment,  with  negligence,  until  he  shall  show  that  no 
negligence  has  been  committed  by  him,  or  those  in  his  employment." 

This  case  falls  within  this  section  ;  and  it  is  therefore  incumbent  on 
the  claimants  to  prove  that  no  negligence  has  been  committed  by  those 
in  their  employment. 

Have  they  proved  this?  It  appears  that  the  disaster  happened  a 
short  distance  above  Benicia ;  that  another  steamer,  called  the  Wilson 
G.  Hunt,  was  thou  about  a  quarter  of  a  mile  astern  of  the  New  World, 
and  that  the  boat  first  arriving  at  Benicia  got  from  twenty-five  to  fifty 
passengers.  The  pilot  of  the  Hunt  says  he  hardly  knows  whether  the 
boats  were  racing,  but  both  were  doing  their  best ;  and  this  is  confirmed 
by  the  assistant  pilot,  who  says  the  boats  were  always  supposed  to  come 

1  8  Martin,  76.  >  2  Hawks,  145.  »  5  Stats,  at  Large,  306. 


180  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 

Steamboat  New  "World  v.  King. 

down  as  fast  as  possible  ;  the  first  boat  at  Benicia  gets  from  twenty-five 
to  fifty  passengers.  And  he  adds  that  at  a  particular  place,  called  "  the 
slough,"  the  Hunt  attempted  to  pass  the  New  World.  Fay,  a  passenger 
on  board  the  New  World,  swears  that  on  two  occasions  before  reaching 
"  the  slough  "  the  Hunt  attempted  to  pass  the  New  Woi'ld,  and  failed  ; 
that  to  his  knowledge  these  boats  had  been  in  the  habit  of  contending 
for  the  mnstery,  and  on  this  occasion  both  were  doing  their  best.  The 
fact  that  the  Hunt  attempted  to  pass  the  New  World  in  "the  slough" 
is  denied  by  two  of  the  respondents'  witnesses,  but  they  do  not  meet 
the  testimony  of  Fay  as  to  the  two  previous  attempts.  Haskell,  another 
passenger,  says:  "About  ten  minutes  before  the  explosion  I  was  stand- 
ing looking  at  the  engine;  we  saw  the  engineer  was  evidently  excited, 
by  his  running  to  a  little  window  to  look  out  at  the  boat  behind.  He 
repeated  this  ten  or  fifteen  times  in  a  very  short  time."  The  master, 
clerk,  engineer,  assistant  engineer,  pilot,  one  fireman,  and  the  steward 
of  the  New  World  were  examined  on  behalf  of  the  claimants.  No 
one  of  them,  save  the  pilot,  denies  the  fact  that  the  boats  were  racing. 
With  the  exception  of  the  pilot  and  the  engineer,  they  are  wholly  silent 
on  the  subject.  The  pilot  says  the}^  were  not  racing.  The  engineer 
saj'S:  "We  have  had*some  little  strife  between  us  and  the  Hunt  as  to 
who  should  get  to  Benicia  first.  There  was  an  agreement  made  that  we 
should  go  first.  I  think  it  was  a  trip  or  two  before."  Considering  that 
the  master  sa^'s  nothing  of  any  such  agreement ;  that  it  does  not  appear 
to  have  been  known  to  any  other  person  on  board  either  boat;  that  this 
witness  and  the  pilot  were  both  directly  connected  with  and  responsible 
for  the  negligence  charged  ;  and  that  the  fact  of  racing  is  substantiall}' 
sworn  to  by  two  passengers  on  board  the  New  World,  and  bj^  the  pilot 
and  assistant  pilot  of  the  Hunt^  and  is  not  denied  by  the  master  of  the 
New  World,  we  cannot  avoid  the  conclusion  that  the  fact  is  proved.  And 
certainly  it  greatly  increases  the  burden  which  the  act  of  Congress  has 
thrown  on  the  claimants.  It  is  possible  that  those  managing  a  steam- 
boat engaged  in  a  race  may  use  all  that  care  and  adopt  all  those  precau- 
tions which  the  dangerous  power  they  employ  renders  necessary  to 
safety ;  but  it  is  highly  improbable.  The  excitement  engendered  by 
strife  for  victory  is  not  a  fit  temper  of  mind  for  men  on  whose  judg- 
ment, vigilance,  coolness,  and  skill  the  lives  of  passengers  depend. 
And  when  a  disastrous  explosion  has  occurred  in  such  a  strife,  this  cour 
cannot  treat  the  evidence  of  those  engaged  in  it,  and  prima  facie 
responsible  for  its  consequences,  as  sufficient  to  disprove  their  own 
negUgence,  which  the  law  presumes. 


PRESUMPTION    FROM    FACT    OF   ACCIDENT.  181 

English  Court  of  King's  Bench. 

We  consider  the  testimony  of  the  assistant  engineer  and  fireman,  who 
are  the  only  witnesses  who  speak  to  the  quantity  of  steam  carried,  as 
wholly  unsatisfactory.  They  say  the  boiler  was  allowed  by  the  inspector 
to  carry  forty  pounds  to  the  inch,  and  that  when  the  explosion  occurred 
they  were  carrying  but  twenty-three  pounds.  The  principal  engineer 
says  he  does  not  remember  how  much  steam  they  had  on.  The  master 
is  silent  on  the  subject,  and  says  nothing  as  to  the  speed  of  the  boat. 
The  clear  weight  of  the  evidence  is  that  the  boat  was,  to  use  the 
language  of  some  of  the  witnesses,  doing  its  best.  We  are  not  con- 
vinced that  she  was  carrying  only  twenty-three  pounds,  —  little  more 
than  half  her  allowance. 

This  is  the  only  evidence  by  which  the  claimants  have  endeavored  to 
encounter  the  presumption  of  negligence.  In  our  opinion,  it  does  not 
disprove  it ;  and  consequently  the  claimants  are  liable  to  damages,  and 
the  decree  of  the  District  Court  must  be  affirmed. 

Decree  affirmed. 


6.  pbesxjmption  or  negligence  feom  the  happening  of  the 

accident. 

Christie  v.  Griggs.* 

English  Court  of  King's  Bench,  1809. 

Before  Lord  Mansfield,  Chief  Justice,  at  Nisi  Prius. 

1  Breaking-  of  Vehicle  prima  facie  Evidence  of  Negligence.  —  In  an  action  against 
the  proprietor  of  a  stage-coach  for  neghgence  whereby  the  coach  broke  down,  and  the 
plaintiff,  travelling  by  it  as  a  passenger,  was  hurt,  to  prove  negligence  it  is  prima  facie 
enough  to  give  evidence  of  the  coach  having  broke  down,  from  which  negligence  will 
be  inferred. 

2.  Carrier  not  answerable  for  Mere  Accident.  —  The  proprietor  of  a  stage-coach  is 
not  answerable  for  any  damage  that  may  happen  to  a  passenger  from  the  coach  being 
overturned  by  mere  accident. 

This  was  an  action  of  assumpsit  against  the  defendant  as  owner  of 
the  Blackwall  stage,  on  whieh  the  plaintiff  (a  pilot)  was  travelling  to 
London,  when  it  broke  down,  and  he  was  greatly  bruised.  The  first 
count  imputed  the  accident  to  the  negligence  of  the  driver ;  the  second, 
to  the  insufficiency  of  the  carriage. 

The  plaintiff  having  proved  that  the  axletree  snapped  asunder  at  a 

•  Reported,  2  Camp.  79, 


182  LIABILITY    OF    THE    CAKKIEK    FOR    NEGLIGENCE. 

Christie  v.  Griggs. 

place  where  there  is  a  slight  descent  from  the  kennel  crossing  the  road, 
that  he  was  in  consequence  precipitated  from  the  top  of  the  coach,  and 
that  the  bruises  he  received  confined  him  several  weeks  to  his  bed, 
there  rested  his  case. 

Vaxghan,  Serjt.,  and  Roberts^  for  the  plaintiff;  Best,  Serjt.,  for  the 
defendant. 

Best,  Serjt.,  contended  strenuously  that  the  plaintiff  was  bound  to 
proceed  farther,  and  give  evidence  either  of  the  driver  being  unskilful 
or  of  the  coach  being  insufficient. 

Sir  James  Mansfield,  C.  J.  —  I  think  the  plaintiff  has  made  a  prima 
facie  case  by  proving  his  going  on  the  coach,  the  accident,  and  the  dam- 
age he  has  suffered.  It  now  lies  on  the  other  side  to  show  that  the 
coach  was  as  good  a  coach  as  could  be  made,  and  that  the  driver  was  as 
skilful  a  driver  as  could  anywhere  be  found.  What  other  evidence  can 
the  plaintiff  give?  The  passengers  were  probably  all  sailors  like  him- 
self, and  how  do  they  know  whether  the  coach  was  well  built,  or 
whether  the  coachman  drove  skilfully?  In  many  other  cases  of  this 
sort  it  must  l)e  equally  impossible  for  the  plaintiff  to  give  the  evidence 
required.  But  when  the  breaking  down  or  overturning  of  a  coach  is 
proved,  negligence  on  the  part  of  the  owner  is  implied.  He  has  always 
the  means  to  rebut  this  presumption,  if  it  be  unfounded ;  and  it  is  now 
incumbent  on  the  defendant  to  make  out  that  the  damage  in  this  case 
arose  from  what  tlie  law  considers  a  mere  accident. 

The  defendant  then  called  several  witnesses,  who  swore  that  the  axle- 
tree  had  been  examined  a  few  days  before  it  broke,  without  any  flaw 
being  discovered  in  it ;  and  that  when  the  accident  happened,  the  coach- 
man, a  very  skilful  driver,  was  driving  in  the  usual  track  and  at  a 
moderate  i)ace. 

Sir  James  Mansfield  said,  as  the  driver  had  been  cleared  of  every 
thing  like  negligence,  the  question  for  the  jury  would  be  as  to  the 
sufficiency  of  tlie  coach.  If  the  axletree  was  sound,  as  far  as  human  eye 
could  discover,  the  defendant  was  not  liable.  There  was  a  difference 
between  a  contract  to  carry  goods  and  a  contract  to  carry  passengers. 
For  the  goods  the  carrier  was  answerable  at  all  events.  But  he  did  not 
warrant  the  safety  of  the  passengers.  His  undertaking  as  to  them  went 
no  farther  than  this,  that  as  far  as  human  care  and  foresight  could  go, 
he  would  provide  for  their  safe  conversance.  Therefore,  if  the  breaking 
down  of  the  coach  was  purely  accidental,  the  plaintiff  had  no  remedy 
for  the  misfortune  he  had  encountered. 

The  jury  found  a  verdict  for  the  defendant. 


PRESUAirTlO.N    FKOM    FACT    OF    ACCIDENT.  183 


Supreme  Court  of  the  United  States. 


6.  THE  SAME  SUBJECT  —  CONTRIBUTORY  NEGLIGENCE  OF  THE  PAS- 
SENGER. 

Stokes  v.  Saltonstall.* 
Supreme  Court  of  the  United  States,  1839, 

Hon.  Roger  B.  Taney,  Chief  Justice. 

"  Joseph  Story, 

•*  Smith  Thompson, 

**  John  McLean, 

**  Henry  Baldwin, 

•*  James  M.  Wayne, 

««  Philip  P.  Barbour, 

**  John  Catron, 

"  John  McKinley, 


-  Associate  Justices, 


1.  Extent  of  Liability. —  A  carrier  of  passengers  for  hire  is  not  an  insurer  for  their 

safety;  but  in  case  they  are  injured  while  in  transit,  he  is  or  is  not  liable  to  pay  damages 
for  such  injury,  accordingly  as  he  or  his  servants  or  agents  have  or  have  not  been  guilty 
of  negligence. 

2.  Presumption  from  happening:  of  Accident  — Burden  of  Proof. —  The  fact  that  an 

accident  happened  to  a  passenger  by  ttie  upsetting  of  the  carrier's  vehicle,  is  prima 
facie  evidence  of  negligence,  or  want  of  the  proper  skill,  on  the  part  of  the  carrier,  and 
throws  upon  the  carrier  the  burden  of  proving  that  the  accident  happened  without  his 
fault. 

3.  What  -will  rebut  this  Presumption.  —  In  order  to  rebut  this  presumption,  the  carrier 

must  show  that  his  servant  in  charge  of  the  vehicle  was  a  person  of  competent  skill,  of 
good  habits,  and  in  other  rcsjiects  qualified  and  suitably  prepared  for  the  business 
in  which  he  was  engaged;  that  he  acted  upon  the  particular  occasion  with  reasonable 
skill  and  with  the  utmost  prudence  and  caution,  and  that  the  disaster  was  not  occa- 
sioned by  the  least  negligence,  or  want  of  skill  or  prudence,  on  his  part. 

4.  Contributory  Ne^lig-ence  of  the  Passengar.  —  A  person  is  not  chargeable  with  con- 

tributory negligence  for  acting  erroneously  in  a  position  of  sudden  danger  in  which 
he  is  placed  by  the  negligence  or  fault  of  another.  If,  therefore,  a  stage-coach  is  upset 
by  the  negligence  of  its  driver,  and  the  passenger  therein,  under  the  impulse  of  fear, 
acts  in  a  manner  which  results  in  an  injury  to  him,  where,  if  he  had  remained  calm,  and 
kept  his  place,  he  would  have  escaped  injury,  he  will  not  thereby  be  precluded  from 
recovering  damages  of  the  carrier. 

Schley,  for  the  plaintiff ;  Johnson,  contra. 

Barbour,  J.,  delivered  the  opinion  of  the  court. — This  is  a  writ  of 
error  to  a  judgment  of  the  Circuit  Court  of  the  United  States  for  the 
Fourth  Circuit,  and  District  of  Maryland. 

It  was  an  action  on  the  case,  brought  by  the  defendant  in  error 
a  rainst    the    phiinliff    in    error    and    Ricliard    C.    Stockton    to    recover 

*  Uepnrtcd,  13  Pet.  181  faflfirmings.  c.  snh  num.  '^al'nisiall  v  Stockton,  Taney's  Dec.  11). 


184  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGEXCE. 

Stokes  V.  Saltonstall. 

damages  for  an  injury  sustained  by  his  wife  by  the  upsetting  of  a 
stage-coach  in  which  she  was  a  passenger  and  of  which  said  Stockton 
and  Stokes  were  the  proprietors.  The  suit  was  brought  in  the  name  of 
Saltonstall  alone ;  but  there  is  in  the  record  an  agreement,  signed  by 
the  counsel  of  the  parties,  stipulating,  amongst  other  things,  that  the 
plaintiff  might  recover  in  it  any  damages  which  might  be  recoverable  in 
an  action  by  himself  and  wife,  or  by  himself  alone. 

The  declaration  alleges  that  the  injury  complained  of  was  caused  by 
the  negligence  and  want  of  skill  of  the  driver,  then  in  the  employment, 
of  the  said  Stockton  and  Stokes  and  engaged  in  driving  their  coach  in 
which  the  plaintiff's  wife  was  a  passenger  at  the  time  she  received  the 
injury.  In  the  progress  of  the  case,  Stockton,  one  of  the  defendants, 
died,  and  his  death  having  been  suggested  upon  the  record,  the  case 
proceeded  against  Stokes.  He  pleaded  the  general  issue  of  "not 
guilty,"  on  which  issue  was  joined. 

At  the  trial  the  defendant  took  a  bill  of  exceptions  to  the  ruling  of 
the  court,  from  which  it  appears  that  he  asked  the  court  to  give  to  the 
jury  sixteen  several  instructions,  and  the  plaintiff  asked  of  the  court 
two  instructions ;  all  of  which,  as  well  those  asked  by  the  defendant  as 
by  the  plaintiff,  the  court  i-efused.  But  the  court  did  give  the  jury  the 
four  following  instructions,  to  wit :  — 

1.  That  the  defendant  is  not  liable  in  this  action,  unless  the  jury  fiml 
that  the  injury  of  which  the  plaintiff  complains  was  occasioned  by  the 
negligence,  or  want  of  proper  skill  or  care,  of  the  driver  of  the  carriage 
in  which  he  and  his  wife  were  passengers ;  and  the  facts  that  the 
carriage  was  upset  and  the  plaintiff's  wife  injured  are  lyrimd  facie 
evidence  that  there  was  carelessness,  .or  negligence,  o^r  want  of  skill,  on 
the  part  of  the  driver,  and  throws  upon  the  defendant  the  burden  of 
proving  that  the  accident  was  not  occasioned  by  the  driver's  fault. 

2.  It  being  admitted  that  the  carriage  was  upset  and  the  plaintiff's 
wife  injured,  it  is  incumbent  on  the  defendant  to  prove  that  the  driver 
was  a  person  of  competent  skill,  of  good  habits,  and  in  every  respect 
qualified  and  suitably  prepared  for  the  business  in  which  he  was 
engaged,  and  that  he  acted  on  this  occasion  with  reasonable  skill  and 
with  the  utmost  prudence  and  caution ;  and  if  the  disaster  in  question 
was  occasioned  by  the  least  negligence,  or  want  of  skill  or  prudence, 
on  his  part,  then  the  defendant  is  liable  in  this  action. 

3.  If  the  jury  find  there  was  no  want  of  proper  skill,  or  care,  or 
caution,  on  the  part  of  the  driver,  and  that  the  stage  was  upset  by  the 
act  of  the  plaintiff  or  his  wife  in  rashly  or  improperly  springing  fiora 
it,  then  the  defendant  is  not  liable  to  this  action  ;  but  if  the  want  of 


PRESIBIPTION    FROM   FACX   OF    ACCIDENT.  185 

Supreme  Court  of  the  United  States. 

proper  skill  or  care  of  the  driver  placed  the  passengers  in  a  state  of 
peril,  and  they  had  at  that  time  a  reasonable  ground  for  supposing  that 
the  stage  would  upset,  or  that  the  driver  was  incapable  of  managing 
his  horses,  the  plaintiff  is  entitled  to  recover,  although  the  jury  may 
belijve,  from  the  position  in  which  the  stage  was  placed  from  the  negli- 
gence of  the  driver,  the  attempt  of  the  plaintiff  or  his  wife  to  escape 
may  have  increased  the  peril,  or  even  caused  the  stage  to  upset,  and 
although  they  may  also  find  that  the  plaintiff  and  his  wife  would  prob- 
ably have  sustained  little  or  no  injury  if  thej'  had  remained  in  the  stage. 

4.  If  the  jur}'  shall  find  that  the  driver  was  a  person  of  competent 
skill,  and  in  ever}'  respect  qualified  and  suitably  prepared  for  the  busi- 
ness in  which  he  was  engaged,  and  that  the  accident  was  occasioned  by 
no  fault,  or  want  of  skill  or  care,  on  his  part,  or  that  of  the  defendant 
or  his  agents,  but  by  physical  disability  arising  from  extreme  and 
unusual  cold,  which  rendered  him  incapable  for  the  time  to  do  his  dut}', 
then  the  defendant  is  not  liable  in  this  action. 

Under  these  instructions,  the  plaintiff  obtained  a  verdict  for  $7,130, 
for  which  the  court  rendered  a  judgment  in  his  favor;  and  from  that 
judgment  this  writ  of  error  is  taken. 

We  consider  it  altogether  unnecessary  to  notice  any  of  the  instruc- 
tions asked  for  by  the  defendant  and  which  the  court  refused  to  give, 
because  those  which  the}'  did  give  cover  the  whole  ground ;  and  there- 
fore it  depends  upon  their  correctness  whether  the  judgment  is  to  be 
affirmed  or  not. 

We  think  that  the  court  laid  down  the  law  correctly  in  each  and  all 
of  these  instructions.  It  is  certainly  a  sound  principle  that  a  contract 
to  carry  passengers  differs  from  a  contract  to  carry  goods.  For  the 
goods  the  carrier  is  answerable  at  all  events,  except  the  act  of  God 
and  the  public  enemy.  But  although  he  does  not  warrant  the  safety  of 
the  passengers  at  all  events,  yet  his  undertaking  and  liability  as  to  them 
go  to  this  extent,  that  he  or  his  agent,  if,  as  in  this  case,  he  acts  by 
agent,  shall  possess  competent  skill,  and  that,  as  far  as  human  care  and 
foresight  can  go,  he  will  transport  them  safely.  The  principle  is  in  sub- 
stance thus  laid  down  in  the  case  of  Christie  v.  Griggs.^ 

So  it  is  also  in  the  case  of  Aston  v,  Heaven^'^  where  it  is  said  that 
coach-owners  are  not  liable  for  injuries  happening  to  passengers  from 
accident  or  misfortune,  where  there  has  been  no  negligence  or  default  in 
the  driver ;  that  the  action  stands  on  the  ground  of  negligence,  but  that 
a  driver  is  answerable  for  the  smallest  neghgence. 

1  2  Camp.  79,  ante,  p  181.  •  2  Esp.  633. 


18fc)  LIABILITY    or    THE  'CARRIER    FOR    NEGLIGENCE. 

Stokes  V.  Saltonstall. 

The  principle  is  thus  laid  down  in  2  Kent's  Commentaries  (7tb  ed. ), 
p.  769  :  "  The  proprietors  of  a  stage-coach  do  not  warrant  the  safety  of 
passengers,  in  the  character  of  common  carriers ;  and  they  are  not 
responsible  for  mere  accidents  to  the  persons  of  the  passengers,  but 
only  for  the  want  of  due  care."  What  the  author  understood  to  be  due 
care  will  appear  from  this  consideration,  that  in  support  of  his  proposi- 
tion he  refers  to  the  two  cases  which  we  have  just  cited. 

In  Story  on  Baihnents,  many  cases  are  collected  together  upon  this 
subject  in  pages  376,  377,  as  illustrative  of  the  principle,  which  is  by 
that  author  laid  down  in  these  words:  "If  he  (that  is,  the  driver)  is 
guilty  of  any  rashness,  negligence,  or  misconduct,  or  is  unskilful,  or 
deviates  from  the  acknowledged  custom  of  the  road,  the  proprietors 
will  be  responsible  for  any  injuries  resulting  from  his  acts.  Thus,  if 
the  driver  drives  with  reins  so  loose  that  he  cannot  govern  his  horses, 
the  proprietors  of  the  coach  will  be  answerable.  So,  if  there  is  danger 
in  a  part  of  the  road,  or  in  a  particular  passage,  and  he  omits  to  give 
due  warning  to  the  passengers.  So,  if  he  takes  the  wrong  side  of  the 
road,  and  an  accident  happens  from  want  of  proper  room.  So,  if  by 
any  in  caution  he  comes  in  collision  with  another  carriage."  To  which 
we  will  add  the  further  example :  whenever  there  is  rapid  driving  which, 
under  the  circumstances  of  the  case,  amounts  to  rashness.  In  short, 
says  the  author,  he  must  in  all  cases  exercise  a  sound  and  reasonable 
discretion,  in  travelling  on  the  road,  to  avoid  dangers  and  difficulties ; 
and  if  he  omits  it,  his  principals  are  liable. 

The  only  case  which  is  recollected  to  have  come  before  this  court  on 
this  subject  is  that  of  Boyce  v.  Anderson.^  That  was  an  action  brought 
by  the  owner  of  slaves  against  the  proprietor  of  a  steamboat  on  the 
Mississippi  to  recover  damages  for  the  loss  of  the  slaves,  alleged  to  have 
been  caused  by  the  negligence  or  mismanagement  of  the  captain  and 
commandant  of  the  boat.  The  court  distinguished  slaves,  being  human 
beings,  from  goods ;  and  held  that  the  doctrine  as  to  the  liability  of 
common  carriers  for  mere  goods  did  not  apply  to  them,  but  that  in 
respect  of  them  the  carrier  was  liable  only  for  ordinary  neglect.  The 
court  seem  to  have  considered  that  case  as  being  a  sort  of  intermediate 
one  between  goods  and  passengers.  We  think,  therefore,  that  any 
thing  said  in  that  case,  in  the  reasoning  of  the  court,  must  be  confined 
in  its  application  to  that  case,  and  does  not  affect  the  principle  which 
we  have  before  laid  down.  That  principle,  in  our  opinion,  fully  justifies 
the  first  and  second  instructions  given  by  the  court,  except  that  part  of 

1  2  Pet.  150. 


PRESUMPTION    FROM    FACT    OF    ACCIDENT.  187 

Supreme  Court  of  the  United  States. 

those  instructions  which  relates  to  the  omis  prnbancU;  and  althongh  we 
think  this  portion  of  the  instructions  as  well  founded  in  justice  and  law 
as  the  other,  yet  it  rests  upon  a  different  ground.  The  first  part  has 
relation  to  the  liability  of  the  defendant ;  the  second,  to  the  question, 
on  whom  devolves  the  burden  of  proof  ?  If  the  question  were  one  of 
the  first  impression,  we  should,  upon  the  reason  and  justice  of  the  case, 
adopt  the  principle  laid  down  by  the  Circuit  Court.  But  although 
tiiere  is  no  case  which  could  have  the  weight  of  authority  in  this  court, 
we  are  not  without  a  decision  in  relation  to  it.  The  very  point  was 
decided  in  2  Camp.  80,  where  it  is  said  by  Mansfield,  C.  J.,  that  he 
thought  the  plaintiff  had  made  a  prima  facie  case  by  proving  his  going 
on  the  coach,  the  accident,  and  the  damage  he  had  suffered. 

It  is  objected,  however,  in  the  printed  argument  which  has  been  laid 
before  us,  that  although  the  facts  of  the  overturning  of  the  coach  and 
the  injury  sustained  are  prima  facie  evidence  of  negligence,  they  did 
not  throw  upon  the  defendant  the  burden  of  proving  that  such  over- 
turning and  injury  were  not  occasioned  by  the  driver's  default,  but 
only  that  the  coachman  was  a  person  of  competent  skill  in  his  business, 
that  the  coach  was  properly  made,  the  horses  steady,  etc. 

Now,  taking  that  portion  of  the  first  and  second  instructions  which 
relates  to  the  burden  of  proof  together,  we  understand  them  as  sub- 
stantially amounting  to  what  the  objection  itself  seems  to  concede  to  be 
a  proper  ruling,  and  what  we  consider  to  be  the  law.  For,  although  in 
the  first  it  is  said  that  these  facts  threw  upon  the  defendant  the  burden 
of  proving  th.-it  the  accident  was  not  occasioned  by  the  driver's  fault, 
yet  in  the  second  it  is  declared  that  it  was  incumbent  on  the  defendant, 
in  order  to  meet  ihe  plaintiff' s  pn'ma /aae  case,  to  prove  that  the 
driver  was  a  person  of  competent  skill,  of  good  habits,  and  in  every 
respect  qualified  and  suitably  prepared  for  tlie  business  in  which  he  was 
engaged ;  and  that  he  acted  on  the  occasion  with  reasonable  skill  and 
with  the  utmost  prudence  and  caution. 

This  affirmative  evidence,  then,  was  pointed  out  by  the  court  as  the 
means  of  proving  what  was  in  terms  stated  in  tlie  form  of  a  negative 
proposition  before,  —  that  is,  that  the  accident  was  not  occasioned  by 
the  driver's  fault.  The  third  instruction  also  announces  a  principle 
whicli  we  think  stands  supported  by  the  soundest  reason,  and  we  should 
therefore  adopt  it  as  being  correct  if  it  were  altogether  a  new  question. 

But  this  too  is  in  accordance  with  the  doctrine  of  Lord  Ellenbor- 
OKGH  ill  1  Starkie's  Cases,  403,  in  which  he  says  that  to  enable  the 
plaintiff  to  sustain  tiie  action  it  is  not  necessary  tliat  he  should  have 
bi'cn  thrown  off  tlie  coacli ;  it  is  sufficient  if  he  were  placed,  by  the  mis- 


188  LIABILITY    OF   THE    CARRIER    FOR    NEGLIGENCE. 

Curtis  V.  Rochester  and  Syi'acuse  Railroad  Company. 

conduct  of  the  defendant,  in  such  a  situation  as  obliged  him  to  adopt 
the  alternative  of  a  dangerous  leap  or  to  remain  at  certain  peril ;  if 
that  position  was  occasioned  by  the  fault  of  the  defendant,  the  action 
may  be  supported.  On  the  other  hand,  if  the  plaintiff 's  act  resulted 
from  a  rash  apprehension  of  danger,  which  did  not  exist,  and  the  injury 
which  he  sustained  is  to  be  attributed  to  rashness  and  imprudence,  he 
is  not  entitled  to  recover. 

The  instruction  which  we  are  now  considering  is  framed  in  the  spirit 
of  the  principle  which  we  have  just  stated,  and  we  think  it  wholly  un- 
exceptionable. 

The  fourth  instruction  which  was  given  to  the  jury  was  in  favor  of 
the  defendant,  now  plaintiff  in  error,  and  therefore  need  not  be  con- 
sidered. Upon  the  whole,  we  think  that  there  is  no  error  in  the  judg- 
ment.    It  is  therefore  aflflrmed,  with  costs. 

Judgment  affirmed. 


7.  the  same  subject. 
Curtis  v.  Rochester  and  Syracuse  Railroad  Company.* 

Coui't  of  Appeals  of  New  York,  1859. 

Hon.  Alexander  S.  Johnson,  Chief  Justice. 

♦•  George  F.  Comstock,  1 

"  Samuel  L.  Selden,        |-  Judges. 

**  Hiram  Denio,  J 

"  Selah  B.  Strong, 

"  Cornelius  L.  Allen, 

"  Hiram  Gray, 

*«  Martln  Grover, 


Justices  of  the  Supreme  Court, 
mid  ex-officio  Judges  of  the 
Court  of  Appeals. 


Presumption  of  Neglig-ence  from  the  happening:  of  the  Accident.  —  The  mere 

fact  that  an  accident  happens  to  the  passenger  while  in  the  carrier's  vehicle  making 
the  transit,  without  more,  will  not  be  prima,  facie  evidence  of  negligence  to  charge 
the  carrier;  for,  notwithstanding  such  evidence,  the  wi-ong  which  produced  the  acci- 
dent may  be  imputable  to  a  stranger,  for  whose  conduct  the  carrier  is  in  no  wise 
responsible. 

Continued  — Pailure  of  Carrier's  Means  of  Transportation.  — But  where  the  acci- 
dent is  of  such  a  nature  that  it  appears  that  the  wrong  or  negligence  which  produced 
it  was  the  wrong  or  negligence  of  the  carrier  himself,  or  of  some  person  for  whose 
conduct  in  the  premises  tlie  carrier  is  responsible,  then  proof  of  the  accident  wUl 
raise  a  presumption  of  negligence  against  the  carrier.    And  this  is  the  case  where  the 

•  Reported,  IS  N.  Y.  534. 


PRESUMPTION    FROM    FACT    OF    ACCIDENT.  189 

Court  of  Appeals  of  New  York. 

accident  happens  in  consequence  of  the  breaking,  giving  way,  or  failure  of  some  of  the 
carrier's  means  of  transportation. 

3.  Illustration  —  Case  in  Judgment.  —  When,  therefore,  a  passenger  on  a  railway  train 

was  injured  in  consequence  of  the  train  running  off  the  track  at  a  switch,  and  the 
evidence  left  it  uncertain  whether  the  accident  happened  in  consequence  of  the  switch 
giving  way,  or  in  consequence  of  a  spreading  and  breaking  of  the  rails,  it  was  held  not 
error  for  the  judge  to  tell  the  jury  "  that  the  fact  of  this  accident  occurring  was  of  itself 
presumptive  evidence  of  negligence  on  the  part  of  the  defendants." 

4.  Measure  of  Damag-es  — Future  Pain  and  Suffering.  —  The  damages  recoverable 

for  bodily  pain  and  suffering  by  a  person  injured  by  the  negligence  of  another  are  not 
limited  to  the  suffering  experienced  before  the  trial,  but  extend  to  such  future  suffer- 
ing as  will  probably  result  from  the  injury. 

Action  for  damages  received  by  a  passenger  on  the  defendant's  rail- 
road from  the  negligence  of  its  servants.  On  the  trial  before  Mr. 
Justice  Johnson,  at  the  Ca3aiga  Circuit,  the  evidence  was  that  the  train 
containing  the  plaintiff  ran  off  the  track  at  Waterloo,  at  a  switch.  The 
proof  left  it  uncertain  whether  the  switch  was  deranged,  or  the  accident 
resulted  from  the  spreading  and  breaking  of  the  rails.  There  was  no 
evidence  that  there  was  any  visible  defect  in  the  apparatus  prior  to  the 
accident.  The  plaintiff's  ankle  was  wrenched  and  her  leg  bruised.  A 
running  sore  or  ulcer  succeeded  upon  the  bruised  place,  which  continued 
running,  down  to  the  time  of  the  trial,  nearly  two  years  after  the  acci- 
dent. There  was  considerable  medical  testimony  in  respect  to  the 
probability  of  the  sore  being  healed  at  some  future  time,  and  as  to  the 
continued  effect  of  the  plaintiff's  injuries  in  causing  bodily  pain  and 
affecting  her  general  health.  The  only  exceptions  were  to  the  charge, 
and  are  sufficiently  stated  in  the  following  opinions.  The  plaintiff  had 
a  verdict  and  judgment,  which  having  been  affirmed  upon  appeal  at 
General  Term,  the  defendant  appealed  to  this  court.    , 

Alonzo  G.  Paige,  for  the  appellant ;  George  Rathbun,  for  the  respon- 
dent. 

Selden,  J.  — The  judge  charged  the  jury  in  this  case  "  that  the  fact 
of  this  accident  occuiTJng  was  of  itself  presumptive  evidence  of  negli- 
•gence  on  the  part  of  the  defendant*"  If  by  this  the  judge  is  to  be 
understood  as  saying  that,  in  cases  of  this  kind,  evidence  of  the  mere 
happening  of  an  accident,  resulting  in  injury  to  the  plaintiff,  without 
proof  of  any  of  the  circumstances  under  which  it  occurred,  establishes 
prima  facie  the  charge  of  negligence,  I  am  not  prepared  to  assent  to 
the  proposition.  Carriers  of  passengers  are  not  insurers ;  and  many 
injuries  may  occur  to  those  they  transport  for  which  they  are  not 
responsible.  Tliey  are,  for  oV)vious  reasons,  held  bound  to  exert  the 
utmost  care  nnd  vigilance  to  secure  the  safety  of  the  passengers;  and 
are  responsible  for  the  slightest  negligence. 


190  LIABILITY    OF    THE    CARRIER   FOR    NEGLIGENCE. 

Curtis  V.  Rochester  and  Syracuse  Railroad  Company. 

But  injuries  may  often  happen  through  the  fault  or  misconduct  of 
those  whose  acts  are  in  no  way  chargeable  to  them.  In  travelling  in 
stage-coaches,  upon  ordinary  roads,  such  injuries  would  be  very  fre- 
quent, because,  in  such  cases,  the  proprietors  of  the  coach  do  not 
construct  the  roads,  nor  control  those  who  travel  upon  them.  For  a 
large  portion  of  the  accidents,  therefore,  which  result  from  defects  in 
the  road  or  collisions  with  other  vehicles,  the  proprietors  would  not  be 
liable. 

The  carrier,  however,  is  in  all  cases  bound  to  provide  a  safe  and 
secure  carriage  for  the  transportation  of  the  passengers ;  and  nothing 
can  exempt  him  from  this  responsibility'^  but  the  existence  of  some  latent 
defect  which  no  reasonable  degree  of  human  skill  and  foresight  could 
guard  against ;  and  this  obligation  extends  to  every  species  of  appliance 
belonging  to  the  carrier  and  used  by  him  in  the  business  in  which  he  is 
engaged.  Consequently,  whenever  it  appeal's  that  the  accident  occurred 
through  some  defect  in  the  vehicle  or  other  apparatus  used  by  the  car- 
rier, a  strong  presumption  of  negligence  arises,  founded  upon  the  im- 
probability of  the  existence  of  any  defect  which  extreme  vigilance, 
aided  by  science  and  skill,  could  not  have  detected. 

The  cases  in  which  the  carriers  would  be  exempt  from  responsibility 
would  be  far  less  frequent  where  the  transportation  is  upon  railroads  than 
where  it  is  upon  common  roads,  because  railroad  companies  have  the  en- 
tire control  of  the  track  and  of  all  engaged  in  its  use.  Still,  accidents 
may  occur  from  a  multitude  of  causes,  even  upon  a  railroad,  for  which 
the  company  is  not  responsible.  If  obstructions  are  placed  by  strangers 
upon  the  road,  either  through  accident  or  design,  the  company  is  not 
responsible  for  th^  consequences,  unless  its  agents  have  been  remiss  in 
not  discovering  them.  The  straying  of  cattle  or  horses  upon  the  roads 
causes  numerous  accidents  which  are  not  chargeable  to  the  company. 
If  a  drunken  man  falls  asleep,  or  a  deaf  man  incautiously  walks  upon 
the  road,  in  consequence  of  which  a  train  is  unavoidably  thrown  from 
the  track  and  a  passenger  is  injured,  he  is  without  redress  as  against 
the  company.  So  if  a  careless  driver,  in  crossing  a  track,  fails  to  get 
his  vehicle  out  of  the  waj'  of  an  approaching  train.  How  then  can  it 
be  assumed,  without  proof  of  any  sort,  when  an  accident  has  occurred, 
that  it  was  caused  by  some  carelessness  on  the  part  of  the  agents  of  the 
company,  and  not  by  an}'  or  either  of  these  numerous  causes  ? 

In  regard  to  the  carriages  and  other  apparatus  used  for  the  carrying  of 
passengers,  railroad  companies  are  under  the  same  obligation  as  that 
ah'ead}'  alluded  to  in  tlie  case  of  the  carrier  upon  common  roads.  The}' 
make  and  own  their  road,  and  have  the  exclusive  control  of  that  and  of 


PRESUMPTIOX    FliOM    FACT    OF    ACCIDENT.  191 


Court  of  Appeals  of  New  York. 


every  part  of  the  machinery  and  apparatus  used  in  connection  with  it. 
Passengers  have  no  means  of  knowing  nor  any  power  of  remedying  its 
<lefects,  but  are  forced  to  trust  their  lives  and  persons  to  the  care  and 
watchfuhiess  of  the  agents  of  the  company.  The  latter,  therefore,  is 
bound  to  see  that  the  road  and  all  its  appurtenances  are  in  perfect  order 
and  free  from  any  defect  which  the  utmost  vigilance,  aided  by  the 
higliest  degree  of  knowledge  and  skill,  could  discover  or  prevent. 

Consequently,  whenever  it  appears  that  the  accident  was  caused  by 
any  deficiency  in  the  road  itself,  the  cars,  or  any  portion  of  the  appa- 
ratus belonging  to  the  company  and  used  in  connection  with  its  business, 
a  presumption  of  negligence  on  the  part  of  those  whose  duty  it  was  to 
see  that  every  thing  was  in  order  immediately  arises,  it  being  extremely 
unlikely  that  any  defect  should  exist  of  so  hidden  a  nature  that  no 
degree  of  skill  or  care  could  have  foreseen  or  discovered  it. 

If  it  be  said  that  upon  the  same  principle  upon  which  negligence  is 
presumed  in  such  a  case  it  should  be  presumed  in  every  case,  on 
account  of  the  high  degree  of  improbability  that  a  serious  accident  of 
anj'  kind  should  occur  without  some  degree  of  negligence,  the  answer 
is  plain ;  and  to  present  this  distinction  is  the  object  of  most  that  has 
been  said.  There  may  be  a  presumption  of  negligence  in  every  case ; 
but  where  nothing  is  known  in  regard  to  the  cause  of  the  accident,  the 
negligence  may  as  well  have  been  that  of  some  one  residing  in  the 
vicinity  of  the  road,  or  of  some  stranger,  of  whom  numbers  come  in 
contact  with  it  every  day,  as  of  any  of  the  employees  of  the  com- 
pany ;  while  if  it  appears  that  the  mischief  has  resulted  from  a  defect 
in  some  part  of  the  apparatus  of  the  company,  the  negligence,  if  any, 
must  have  been  that  of  some  one  for  whose  acts  and  omissions  the 
company  is  liable,  it  being  well  settled  that  the  carrier  is  responsible 
for  the  negligence  or  want  of  skill  of  every  one  who  has  been  con- 
cerned in  the  manufacture  of  any  portion  of  its  apparatus.^ 

The  cases  in  which  it  has  been  said  that  a  presumption  of  negligence 
arises  from  the  mere  proof  that  an  accident  has  occurred  will  appear, 
if  examined,  not  to  conflict  materially  with  these  principles ;  and  some 
of  them  are,  1  think,  illustrative  of  the  distinction  just  suggested. 
The  leading  cases  on  the  subject  are  those  of  Christie  v.  Griggs,^  Stokes 
v.  Sallomtall,^  Carpue  v.  London  and  Brighton  Railway  Company,^ 
and  Laing  v.  Colder.^ 

In  Christie  v.  Griggs,  where  Sir  James  Mansfield  is  supposed  to  have 

1  Hegeman  v.  "Western  R.  Co.,  13  N.  Y.  9,  "2  Camp.  T9,  ante,  p.  181. 

ante,  p.  160;  Ware  v.  Gay,  11  Pick.  lOG;  In-  '  13  Pet.  192,  ante,  p.  183. 

galls  V.  Bills,  9  Mete.  1,  ante,  p.  Ui.  <  6  Q.  13.  747.  ^  8  Pa.  St.  479. 


192  LIABILITY    OF    THE    CAKRIEK    FOK    ISEGLIGEXCE. 

Curtis  V.  Rochester  and  Syracuse  Railroad  Company. 

laid  down  the  proposition  in  question,  it  was  proved  that  the  injury 
was  caused  by  the  breaking  of  the  axletree  of  the  coach,  upon  the  top 
of  which  the  plaintiff  was  seated ;  and  it  was  in  view  of  this  proof  that 
the  Chief  Justice  made  the  remark  that  "the  plaintiff  had  made  a 
prima  facie  case  by  proving  his  going  on  the  coach,  the  accident, 
and  the  damage  he  had  suffered."  There  is  no  doubt  that  in  such  a 
case  negligence  should  be  presumed,  for  the  reasons  which  have  been 
given. 

In  the  case  of  Stokes  v.  Saltonstall,  which  was  also  an  action  against 
the  proprietors  of  a  line  of  stage-coaches,  the  court  instructed  the  jury 
that  the  "facts  that  the  carriage  was  upset  and  the  plaintiff's  wife 
injured  were  prima  facie  evidence  that  there  was  carelessness,  or  negli- 
gence, or  want  of  skill,  on  the  part  of  the  drivei' ;  and  threw  upon  the 
defendant  the  burden  of  proving  that  the  accident  was  not  occasioned 
by  the  driver's  fault."  Taken  abstractly,  this  instruction,  which  was 
sustained  by  the  court,  might  seem  to  be  in  conflict  with  the  principles 
here  contended  for;  but  if  understood  in  reference  to  the  proof,  it 
is  otherwise.  The  plaintiff  has  proved  not  only  the  accident  and  the 
injury,  but  that  the  passengers  had  remarked  that  the  driver  appeared 
intoxicated,  and  so  told  the  agent  of  the  proprietors ;  that  the  road  was 
perfectly  level,  and  not  dangerous  or  difficult;  and  that  the  reckless 
<onduct  of  the  driver  had  called  out  repeated  remonstrances  from  the 
l)assengers,  which  were  wholly  unattended  to.  Here  was  ample  proof 
of  negligence,  and  the  judge  must  have  had  these  circumstances  in 
view  when  he  made  his  remarks  to  the  jury.  The  happening  of  the 
accident,  under  the  circumstances  proved,  was  undoubtedly  prima  facie 
i^vidence  of  negligence. 

The  other  two  cases  were  actions  for  injuries  upon  railroads.  In 
cliat  of  Carpue  v.  London  and  Brighton  Railway  Company,  it  appeared 
that  the  position  of  the  rails  had  been  somewhat  deranged  at  the  spot 
where  the  injury'  took  place ;  and  the  Chief  Justice  charged  the  jury 
that  it  having  been  shown  that  the  exclusive  management  both  of  the 
inachiner}'  and  the  railway  was  in  the  hands  of  the  defendants,  it  was 
presumable  that  the  accident  arose  from  their  want  of  care,  unless  they 
'^ave  some  explanation  of  the  cause  by  which  it  was  produced.  This 
is  in  perfect  accordance  with  the  principles  which  have  been  hert 
:idvanced. 

Laing  v.  Colder  is  perhaps  the  strongest  case  in  support  of  the 
doctrine  against  which  we  contend.  When  tlmt  case  was  heard  in 
banco.  Bell,  J  .  said,  "the  m/'re  happening  of  an  injurious  accident 
raises,  prima  facie,   a   prosumpiion    of   neglect,   and   throws    upon    the 


PRESUMPTION    FROM    FACT    OF    ACCIDENT.  193 

Court  of  Appeals  of  New  York. 

carrier  the  onus  of  showing  it  did  not  exist."  But  the  charge  of  the 
judge  at  the  circuit  upon  which  the  question  arose  was  not  so  broad. 
He  instructed  the  jury  that  "in  the  present  case  the  presumption  was 
there  had  been  negligence," — a  charge  fully  justified  by  the  proof, 
which  was  that  the  accident  occurred  while  the  car  was  crossing  a  bridge, 
which  was  so  narrow  that  the  plaintiff's  hand,  lying  outside  the  car- 
window,  was  caught  by  the  bridge  and  his  arm  broken.  It  was  palpable 
negligence  on  the  part  of  the  company  so  to  construct  the  bridge. 

In  no  instance  that  I  am  aware  of  has  it  been  said  by  any  judge  that 
negligence,  on  the  part  of  the  carrier,  was  to  be  presumed  from  the  mere 
happening  of  an  accident,  except  where  the  facts  proved  in  the  particu- 
lar case  fully  warranted  the  presumption  upon  the  principles  here  in- 
sisted upon. 

The  views  here  presented  are,  I  think,  sustained  by  the  opinion  of 
this  court  in  the  case  of  Holhrook  v.  Utica  and  Schenectady  Railroad 
Company.^  Ruggles,  J.,  there  says:  "In  actions  like  the  present,  the 
burden  of  proving  that  the  injury  complained  of  was  caused  by  the 
defendant's  negligence  lies  on  the  plaintiff.  The  same  rule  applies  as 
in  an  action  for  an  injur}'  to  a  passenger  in  a  stage-coach.  It  generally 
happens,  however,  in  cases  of  this  nature,  that  the  same  evidence  whicli 
proves  the  injury  done  proves  also  the  defendant's  neghgence,  or  shows 
circumstances  from  which  strong  presumptions  of  negligence  arise,  and 
which  cast  on  the  defendant  the  burden  of  disproving  it.  For  example, 
a  passenger's  leg  is  broken  while  on  his  passage  in  a  railroad  car.  This 
mere  fact  is  no  evidence  of  negligence  on  the  part  of  the  carrier  until 
something  further  be  shown." 

It  does  not  follow  from  what  has  been  said  that  the  judgment  in  this 
case  is  to  be  reversed  for  error  in  that  part  of  the  charge  referred  to. 
The  very  witness  called  by  the  plaintiff  upon  the  trial  proved  enough  of 
the  circumstances  of  the  case  to  warrant  the  presumption  of  neghgence. 
It  was  clear  from  his  testimony  that  the  accident  was  caused  by  some 
defect  in  the  track,  and  in  all  probability  by  the  misplacement  of  the 
switch.  It  was  immaterial,  however,  whether  it  was  this,  or  the  sj  read- 
ing of  the  rails,  as  the  company  soug'.it  upon  cross-examination  to  show, 
which  threw  the  train  from  the  track.  In  either  case  the  presumption  of 
negligence  would  arise.  Tiie  judge  was  fully  warranted  in  instructing 
the  jury  that  the  occurrence  of  the  accident,  under  the  circumstances 
disclosed  by  the  evidence,  authorized  the  presumption  of  negligence. 

1  12  N.  V.  2.36. 


194  LIABILITY    OF    THE    CAKRIER    FOR    NEGLIGENCE. 

Curtis  V.  Rochester  and  Syracuse  Railroad  Company. 

Did  he  do  more  than  this?  He  did  not  say  to  the  jury,  in  the  language 
of  Judge  Bell  in  Laing  v.  Colder,  that  "  the  mere  happening  of  an 
injurious  accident"  raises  a  presumption  of  negUgence ;  but  his  words 
were  tliat  "the  fact  of  this  accident  occurring"  was  presumptive  evi- 
dence, etc.  The  effect  is  attributed,  not  to  any  and  every  accident,  but 
to  this  particular  accident.  A  verdict  like  this,  sustained  as  it  is  by 
ample  evidence,  ought  not  to  be  disturbed  by  a  construction  which 
would  make  the  charge  a  mere  abstraction,  not  called  for  by  the  exi- 
gencies of  the  case,  provided  any  other  interpretation  is  admissible. 
There  is  no  reason  to  suppose  that  the  jury  were  misled.  The}'  were 
carefully  instructed  that  if  the  injury  was  the  result  of  pure  accident, 
without  any  neglect  of  the  defendants,  the  plaintiff  could  not  recover ; 
and  under  the  view  which  has  been  taken,  the  charge,  so  far  as  the 
exception  under  consideration  is  concerted,  may,  I  think,  be  properly 
sustained. 

A  question  also  arises  upon  that  part  of  the  charge  in  which  the  jury 
were  told  that  in  estimating  the  damages  they  would  be  justified  in 
taking  into  consideration  "the  bodih'  pain  and  suffering  which  the 
plaintiff  suffered,  or  was  likely  to  suffer,  in  consequence  of  the  neglect 
of  the  defendants."  This  instruction,  in  so  far  as  it  relates  to  future 
pain  and  suffering,  is  clearly  erroneous ;  and  if  it  had  not  been  sub- 
sequently modified,  the  error  would,  I  think,  have  been  necessarily  fatal 
to  the  judgment.  There  is  no  doubt  that  bodily  pain  and  suffering  is  a 
proper  item  of  damages  in  such  cases. ^  Nor. is  the  estimate  necessarily 
limited  to  suffering  which  is  past,  where  the  proof  renders  it  reasonably 
certain  that  future  pain  and  suffering  is  inevitable.  In  estimating  the 
pecuniary  loss  in  such  cases,  all  the  consequences  of  the  injury,  future 
as  well  as  past,  are  to  be  taken  into  consideration ;  and  there  seems  to 
be  no  reason  why  a  different  rule  should  prevail  in  respect  to  bodily 
pain  and  suffering.  But  the  objection  to  the  charge  is  that  it  author- 
izes an  allowance  of  damages  for  future  pain  which  is  rendered  probable 
merely.  Damages  are  to  be  proved,  and  none  can  be  allowed  except 
such  as  are  shown  by  the  proof  to  be,  at  least  to  a  reasonalile  degree, 
certain.  The  error,  however,  was  corrected  upon  the  trial.  The  judge, 
upon  his  attention  being  called  to  the  point,  further  instructed  the  jury 
ihat  "future  damages  could  only  be  awarded  when  it  is  rendered  reason- 
ably certain,  from  the  evidence,  that  such  damages  will  inevitably  and 
necessarily  result  from  the  original  injury."     With  this  qualification, 

1  Ransom  v.  New  York  etc.  R.  Co.,  15  N.  Y.  416. 


PRESUMPTION    FllOM    FACT    OF    ACCIDEKT.  195 

Court  of  Appeals  of  New  York. 

I  see  no  objection  to  the  charge  on  this  subject,  and  this  exception  also 
should  therefore  be  overruled. 

The  judgment  should,  I  think,  be  affirmed. 

Grover,  J. — August  7,  1852,  the  plaintiff  took  passage  in  the  de- 
fendants' cars  at  Geneva  for  Auburn.  As  the  train  was  passing  Waterloo. 
it  ran  off  the  track,  and  the  plaintiff  was  injured.  The  court,  among 
other  things,  charged  the  jury  that  the  fact  of  this  accident  occurring 
was  of  itself  presumptive  evidence  of  negligence  on  the  part  of  the 
defendants,  and  it  lay  with  them  to  explain  it  and  to  prove  that  they  were 
not  negligent,  in  order  to  discharge  them  from  liabilitj'  to  the  plaintiff ; 
to  which  the  defendants  excepted.  The  plaintiff  was  bound  to  prove 
her  cause  of  action.  That  was  that  she  had  received  an  injury  caused 
by  the  negligence  of  the  defendants.  The  negligence  of  the  defendants 
must  be  proved  by  the  plaintiff,  as  well  as  the  reception  of  the  injury. 
It  was  not  enough  for  her  to  prove  that  while  a  passenger  upon  the 
defendants'  cars  she  was  injured.  In  this  case,  proof  was  given  that  the 
cars  ran  off  the  track,  and  that  this  occasioned  the  injury.  It  was  in 
reference  to  this  evidence  that  the  judge  charged  the  jury  that  the  fact 
of  this  accident  occurring  was  presumptive  evidence  of  negligence  on 
the  part  of  the  defendants.  The  question  is,  whether  the  plaintiff  was 
liound  to  go  further,  and  show  the  particular  cause  of  the  cars  being 
thrown  from  the  track,  or  whether  it  was  for  the  defendants  to  show 
that  it  was  accidental,  and  without  neglect  upon  their  part.  This 
question  may  be  determined  upon  principles  applicable  to  all  modes 
of  carr3dng  passengers.  It  is  the  duty  of  all  engaged  in  this  busi- 
ness, in  any  mode,  to  use  care  to  secure  the  safety  of  the  passenger, 
proportioned  to  the  danger  incident  to  the  mode  of  conveyance.  In 
case  this  care  is  applied,  as  a  general  result  the  safety  of  the  passenger 
will  be  secured,  so  far  as  that  safety  depends  upon  the  state  or 
condition  of  any  of  the  means  provided  by  the  carrier  and  used  in  the 
business ;  if  there  is  no  imperfection  in  any  of  these,  and  suitable  cau- 
tion is  employed  by  those  engaged  their  application,  every  thing  depend- 
ent thereon  will  accomplish  the  end  in  view.  This  is  as  certain  as  the 
laws  of  mechanics.  When,  therefore,  an  injury  is  received  from  a 
derangement  of  any  thing  employed  by  the  carrier,  the  presumption 
necessarily  arises  that  there  existed  somewhere  an  imperfection  in  the 
machinery  employed,  or  negligence  in  its  appUcation.  It  is  the  duty  of 
the  carrier  to  provide  perfect  machinery,  and  if  he  has  failed  in  this,  it 
devolves  upon  him  to  show  the  excuse,  if  any.  This  is  the  rule  appli- 
cable to  all  cases  where  a  party  seeks  exoneration  from  a  duty  imposed 
upon  him  by  law  or  incurred  by  contract.     The  plaintiff  has  established 


196  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 

Curtis  V.  Rochester  and  SjTacuse  Railroad  Company. 

his  cause  of  action  when  he  has  shown  a  failure  to  perform  the  dut}-, 
from  which  he  has  sustained  an  injury.  It  is  for  the  defendant,  then,  to 
show  the  facts  relieving  him  from  responsibility  in  the  particular  case. 
This  imposes  no  hardship  upon  the  defendant  in  this  class  of  cases. 
The  whole  management  is  exclusively  under  his  control.  He  has  ample 
means  to  show  the  true  cause  of  the  difficulty.  The  plaintiff  know^; 
nothing  about  it.  He  takes  passage  with  the  carrier,  who,  instead  of 
conveying  him  safely,  inflicts  an  injury  upon  him  by  the  failure  of  some 
part  of  the  machinery  employed  by  him.  In  many  cases,  it  would  bo 
impossible  for  the  plaintiff  to  ascertain  the  particular  defect,  and  I  think 
no  such  obligation  is  imposed  upon  him  b}^  the  rules  of  evidence.  The 
authorities  are  uniform  in  favor  of  the  rule  held  bj^  the  judge. ^  The 
same  rule  is  laid  down  by  the  elementary  writers. ^  The  defendants' 
counsel  cites  the  case  of  Holbrook  v.  Uiica,  etc.  Railroad  Company  ^  in 
opposition  to  the  rule.  I  understand  that  case  as  substantially  sus- 
taining the  rule  as  laid  down  by  the  judge  in  his  charge  in  this  case. 
RuGGLES,  J.,  says  that  if  the  witness  who  swears  to  the  injury  testifies 
also  that  it  was  caused  by  a  crush  in  a  collision  with  another  train  of 
cars  belonging  to  the  same  carriers,  the  presumption  of  negligence  im- 
mediately arises.  Just  so  when  it  is  proved  that  the  injurj^  arose  from 
any  derangement,  crush,  or  displacement  of  the  track  or  cars. 

The  exception  to  that  portion  of  the  charge  holding  that  the  plaintiff 
could  recover  a  compensation  for  bodily  pain  suffered,  or  that  she  was 
likely  to  suffer,  is  general ;  and  it  is  settled  that  such  an  exception  is 
unavailing  when  any  portion  of  the  charge  thus  excepted  to  is  correct. 
In  Ransom  v.  New  York  and  Erie  Raihvay  Company,'^  it  was  decided 
bj^  this  court  that  bodily  pain  and  suffering  arising  from  an  injury  was 
a  proper  subject  for  pecuniary  compensation.  This  exception  does  not 
render  it  necessaiy  to  examine  that  portion  of  the  charge  holding  that 
the  plaintiff  could  recover  for  pain  and  suffering  likely  to  be  suffered. 
In  this  case,  the  judge,  I  think,  laid  down  the  true  rule,  in  substance,  in 
regard  to  future  pain  and  suffering,  in  another  portion  of  his  charge : 
that  the  plaintiff  could  only  recover  damages  for  such  pain  and  suffer- 
ing as  the  evidence  rendered  reasonably  certain  would  necessarily  result 
from  the  injury.  But,  as  remarked  above,  the  exception  is  too  general 
to  present  any  question  as  to  future  pain. 

The  judge  was  correct  in  refusing  to  charge  the  jury,  as  requested. 

1  stokes  y.  Saltonstall,  13  Pet.  181,  an<e,  p.  etc.  R.  Co.,  IG   Barb.  113,  and   cases   there 

183 ;  Carpue  v.  London  etc.  R.  Co.,  5  Q.  B.  747 ;  cited. 

8.c.Dav.&M.608;3Eng.  Rail.  Cas.  6;)2;8  Jur.  2  Ang.  on  Car.,  §  569;  2Greenl.  on.  Ev.2-2-2. 

404;  13  L.  J.  (Q.  B.)   133;  Holbrook  r.  Ttica  3  12  N.  Y.  23G.                      <  15  X.  Y.  415. 


GENERAL    DOCTRINES.  197 

Grounds  on  which  Liability  arises. 

that  the  uncontradicted  proof  shows  that  the  switch  was  rightly  placed 
for  the  train  in  which  the  plaintiff  was  a  passenger,  and  awaiting  its 
approach,  and  that  this  rebutted  any  presumption  of  negligence  arising 
from  the  accident.  There  was  evidence  tending  to  show  that  the  train 
ran  off  the  track  at  the  point  of  approach  to  the  switch.  This  was  evi- 
dence tending  to  show  that  the  switch  was  improperly  placed,  and  proper 
for  the  consideration  of  the  jury  upon  that  question.  The  judgment 
should  be  affirmed. 

Denio  and  Comstock,  JJ.,  did  not  sit  in  the  case  ;  all  the  other  judges 
concurring. 

Judgment  affirmed. 


NOTES. 

I.    General  Doctrines. 

§  1 .  Grounds  on  whicli  this  Liability  rests.  —  The  carrier  is  under  a  duty  to 
carry  the  passenger  safely,  so  far  as  human  care,  foresight,  and  skill  will  enable 
him  to  do  it.  This  duty,  it  is  said,  exists  independently  of  contract,  and 
although  there  is  no  contract  in  a  legal  sense  between  the  parties.  Whether 
there  is  a  contract  to  carry,  or  the  senice  undertaken  is  gratuitous,  an  action  lies 
against  the  carrier  for  a  negligent  injury  to  the  passenger. ^  The  law  raises  the 
duty  out  of  regard  for  human  life,  and  for  the  purpose  of  securing  the  utmost 
vigilance  by  carriers  in  protecting  those  who  have  committed  themselves  to  their 
hands.  The  liability  of  the  carrier  is  the  same  whether  the  action  is  brought 
upon  the  contract  or  upon  the  duty,  and  the  evidence  requisite  to  sustain  the 
action  in  either  form  is  substantially  the  same ;  and  when  there  is  an  actual  con- 
tract to  carry,  it  is  properly  said  that  the  liability  in  an  action  founded  upon  the 
public  duty  is  coextensive  with  the  contract. '■' 

Whenever  the  relation  of  carrier  and  passenger  exists  as  defined  in  the  pre- 
ceding chapter,^  the  law  steps  in  and  determines  the  measure  of  the  carrier's 
duty,  according  to  the  circumstances  attending  this  relation.  We  apprehend 
that  the  measure  of  the  carrier's  duty  is  the  same  in  all  cases  where  the  relation 
is  voluntarily  assumed,  whether  for  reward  or  gratuitously.  But  where  the 
relation  is  not  voluntarily  assumed,  —  as,  where  the  person  injured  is  a  tres- 
passer upon  the  vehicle  of  the  carrier,  —  it  is  obvious  that  the  measure  of  the 
carrier's  liability  is  different.  Towards  such  a  person  he  is  not  responsible  for 
that  high  degree  of  care  exacted  towards  other  passengers ;  and  in  the  view  of 
some  courts,  he  is  responsible  only  for  a  wanton  injury.  How  far  this  liability 
which  the  law  attaches  to  the  office  of  a  public  carrier  jp  subject  to  be  limited  by 
express  contract,  is  considered  in  a  future  chapter. 

1  Phila.  etc.  R.  Co.  v.  Derby,  ante,  p.  31 ;  -  Carroll  v.  Sl.aten  Island  R.  Co.,  58  N.  Y. 

Str.  New  VVoi-lil  v.  King,  ante,  p.  175.  126.  '  Ante,  Chap.  IV. 


198  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 


Notes. 


§  2.  Overruled  Cases  holding  Carriers  ol  Passengers  liable  as  Insurers. — 
Two  or  three  old  cases  give  couuteuance  to  the  idea  that  a  common  carrier  of 
passengers  is  liable  as  an  insurer  of  their  safe  carriage.  Thus,  in  Bremner  v.  Wil- 
liams,^ Best,  C.  J.,  said,  "I  consider  that  every  coach  proprietor  warrants  that 
his  stage-coach  is  equal  to  the  journey  he  undertakes."  But,  he  continued 
"  the  counts  go  on  to  charge  negligence,  and  the  case  may  be  decided  upon  that 
ground  also;"  and,  upon  examination  of  the  facts  proved,  he  held  that  there 
was  evidence  of  negligence  to  support  the  verdict  which  the  jury  had  rendered 
for  the  plaintiff. 

In  Sharp  v.  Grey,^  an  axletree  of  defendant's  coach  broke  on  the  journey,  injur- 
ing the  plaintiff,  who  was  a  passenger.  It  appeared  that  the  axletree  was  an  iron 
bar,  which,  excepting  the  arms  projecting  into  the  wheels,  was  enclosed  in  a 
frame  of  wood  consisting  of  four  pieces  bound  together  by  clamps  of  iron.  The 
clamps  were  fastened  with  screws.  Before  the  journey,  the  defendant's  servant 
had  examined  this  part  of  the  vehicle  in  the  usual  way,  when  no  defect  was 
obvious  to  the  sight ;  but  upon  investigation  after  the  accident,  a  defect  was 
discovered  in  that  portion  of  the  iron  bar  embedded  in  the  wood-work,  which 
could  only  be  examined  by  unscrewing  the  iron  clamps  and  taking  off  the  wooden 
frame.  A  mail-contractor  testified  that  it  was  not  usual,  previous  to  journeys, 
to  examine  the  iron  of  the  axletree  by  opening  the  wooden  frame,  and  that  such 
a  practice  would  be  productive  rather  of  insecurity  than  of  safety.  The  maker 
of  the  defendant's  coach  swore  that  the  whole  vehicle  had  been  made  of  the  best 
materials;  that  the  coach  was  not  new,  but  that  the  iron  of  the  axletree  was  ren- 
dered more  tough  by  use,  and  was  less  liable  to  accident  after  wear  than  at  first 
starting.  On  this  evidence,  it  was  contended  that  there  had  been  no  want  of  due 
care  on  the  part  of  the  defendant,  and  that  the  plaintiff's  calamity  was  the  result 
of  inevitable  accident,  for  which  the  defendant  was  not  responsible.  Tindal,  C. 
J.,  directed  the  jury  to  consider  whether  there  had  been  on  the  part  of  the  defend- 
ant that  degree  of  vigilance  which  was  required  by  his  engagement  to  carry  the  plaintiff 
safely.  The  jury  having  found  for  the  plaintiff  with  £500  damages,  Andreics, 
serjt.,  moved  to  set  aside  the  verdict,  on  the  ground  that  the  defendant  had 
conducted  his  business  with  all  the  caution  that  could  be  reasonably  required, 
that  the  jury  had  been  misdirected,  and  that  the  verdict  was  against  the  evidence. 
He  contended  that  a  carrier  of  goods  undertakes  to  deliver  at  all  hazards,  but 
that  a  carrier  of  passengers  is  not  responsible  for  accidents  which  happen  in 
spite  of  every  precaution.  "In  Christie  v.  Gnggs,^''^  said  he,  "it  was  held  that 
the  proprietor  of  a  stage-coach  was  not  answerable  for  any  damages  that  might 
happen  to  a  passenger  from  the  coach  being  overturned  by  a  mei'e  accident. 
The  learned  judges  then  delivered  the  following  opinions :  — 

"Park,  J.  —  I  am  of  opinion  that  no  rule  ought  to  be  granted.  This  was 
entirely  a  question  of  fact,  and  the  damages  are  not  excessive.  It  is  clear  that 
there  was  a  defect  in  the  axletree;  and  it  was  for  the  jury  to  say  whether  the 
accident  was  occasioned  by  what,  in  law,  is  called  negligence  in  the  defendant,  or 
not.  The  Chief  Justice  expresses  no  dissatisfaction  at  the  verdict,  and  it 
ought  not  to  be  disturbed? 

"  Gaselee,  J.  —  I  am  of  the  same  opinion.    The  burden  lay  on  the  defendant  to 

1  1  Car.  &  P.  414.         »  9  Bing.  457;  s.  c.  2  Moo.  &  Scott,  621.         s  2  Camp.  79,  ante,  p.  181. 


GENERAL    DOCTKINES.  199 


Not  Insurers,  but  liable  for  Negligence. 

show  there  had  been  no  defect  in  the  construction  of  the  coach.  Whether  there 
had  been  or  not,  was  a  question  of  fact,  on  which  the  jury  have  determined.  In 
Christie  v.  Griggs,  the  accident  was  occasioned  by  a  kennel  which  crossed  the 
road,  and  not  by  any  defect  in  the  vehicle. 

"BosANQUET,  J.  —  I  am  of  opinion  that  no  rule  should  be  granted  to  disturb 
this  verdict.  The  Chief  Justice  held  that  the  defendant  was  bound  to  provide 
a  safe  vehicle,  and  the  accident  happened  from  a  defect  in  the  axletree.  If  so, 
when  the  coach  started  it  was  not  roadworthy,  and  the  defendant  is  liable  for  the 
consequence  upon  the  same  principle  as  a  ship-owner  who  furnishes  a  vessel 
which  is  not  seaworthy. 

"Alderson,  J.  —  I  am  of  the  same  opinion.  A  coach  proprietor  is  liable  for 
all  defects  in  his  vehicle,  which  can  be  seen  at  the  time  of  construction,  as  well 
as  for  such  as  may  exist  afterwards  and  be  discovered  on  investigation.  The 
injury  in  the  present  case  appears  to  have  been  occasioned  by  an  original  defect 
of  construction ;  and  if  the  defendant  were  not  responsible,  a  coach  proprietor 
might  buy  ill-constructed  or  unsafe  vehicles  and  his  passengers  be  without 
remedy."  ^ 

It  is  perfectly  obvious  that  this  case  is  no  authority  for  the  position  that  the 
liability  of  a  carrier  of  passengers  is  that  of  an  insurer  of  the  safety  of  his 
vehicles.  But  it  was  erroneously  quoted  as  so  holding  by  the  Court  of  Appeals 
of  New  York,  in  1862.  And  that  court  accordingly  laid  down  the  rule  that  a 
common  carrier  of  passengers  is  bound  absolutely,  and  irrespective  of  negligence, 
to  furnish  a  roadworthy  vehicle ;  and  the  conclusion  was  that  the  railroad  com- 
pany was  liable  for  injuries  to  a  passenger  caused  by  a  crack  in  the  iron  axle  of 
the  car,  although  the  defect  could  not  have  been  discovered  by  any  practicable 
mode  of  examination.-  This  case,  however,  so  far  as  it  declares  this  rule,  is 
overruled  by  subsequent  cases  in  the  same  court.^ 

§  3.  Such  Carriers  not  Warrantors  of  their  Vehicles  and  Roads,  but  liabla 
only  for  Negligence.  —  The  rule  laid  down  in  the  last  cited  case  is  not  the  law 
either  in  Great  Britain  or  the  United  States.  The  settled  law  is  that  a  common 
carrier  does  not  warrant  the  safety  of  his  vehicles  and  road  against  all  accidents 
and  contingencies,  but  is  liable  only  for  negligence.*    This  being  the  case,  the 

1  Sharp  V.  Grey,  9  Bing.  457;  s.  c.  2  Moo.  London  etc.   R.  Co.,   2   Fost.    &   Fin.    730; 

&  Scott,  621.  Israel  v.   Clark,  4  Esp.  259;  Burns  v.  Cork 

8  Alden  v.  N.  York  etc.  R.  Co.,  26  N.  Y.  102.  etc.  R.  Co.,  Irish  Rep.  13  C.  L.JN.  S.)  543 ;  Pym 

s  Carroll  v.  Stateu  Island  R.  Co.,  58  N.  Y.  v.  Great  Northern  R.  Co.,  2  Fost.  &  Fin.  619, 


Rep.  13  C.  L.JN.  S.)  f 
3rn  R.  Co.,  2  Fost.  & 

126, 138,  139;  McPadden  v.  New  York  etc.  R.  621;  Maury  r.  Talmadge,  3  McLean,  157;  Car- 
Co.,  44  N.  Y.  478;  Caldwell  v.  New  Jersey  roll  v.  Staten  Island  R.  Co.,  58  N.  Y.  126; 
Steamboat  Co.,  47  N.  Y.  290;  Crogan  v.  New  Crogan  v.  New  York  etc.  R.  Co.,  18  Alb.  L.  J. 
York  etc.  R.  Co.,  18  Alb.  L.  J.  70.  70;  Sullivan  v.  Phila.  etc.  R.  Co.,  30  Pa.  St. 
4  Readhead  v.  Midland  R.  Co.,  ante,  p.  124;  234;  Meier  v.  Pennsylvania  R.  Co.,  64  Pa.  St. 
Ingalls  V.  Bills,  ante,  p.  112;  Christie  v.  225;  Stockton  v.  Frey,  4  Gill,  406;  Frink  v. 
Griggs,  ante,  p.  IS\;  Aston  tJ.  Heaven,  2  Esp.  Potter,  17  111.  40(>;  Jeffersonville  R.  Co.  v. 
533;  Crofts  v.  Waterhouse,  3  Bing.  319;  «.  c.  Hendricks,  26  Ind.  228,  231 ;  Fairchild  v.  Cal- 
11  J.  B.  Moo.  133;  Curtis  v.  Drinkwater,  2  ifornla  Stage  Co.,  13  Cal.  599;  McClary  v. 
i;arn.  &  Adol.  169;  Boyce -j.  Anderson,  2  Pet.  Siou-x  City  etc.  R.  Co.,  3  Neb.  45;  Sawyer  v. 
150;  McKinney  v.  Neil,  1  McLean,  540;  Hannibal  etc.  R.  Co.,  37  Mo.  240,260.  And 
McPadden  v.  New  York  etc.  R.  Co.,  44  see  Keith  v.  Pinkham,  43  Me.  501;  Whites. 
N.   Y.  478  (reversing  47  Barb.  247) ;   Ford  v.  Boultou,  1  Peake,  113. 


200  LIABILITY    OF    THE    CARRIER   FOR    NEGLIGENCE. 


Notes. 


general  rules  which  obtain  in  the  law  of  negligence  come  into  effect,  except  so 
fai"  as  they  are  modified  by  the  circumstance  that  the  carrier  is  responsible  for 
an  extraordinary  degree  of  care :  the  negligence  of  tlie  carrier  must  have  been 
a  proximate  or  juridical  cause  of  the  injury,  —  or,  to  borrow  an  expression 
coined  by  Lord  Cairns,  it  must  have  been  incuria  dans  locum  injurice  ;  ^  and  the 
passenger  himself  must  not  have  been  guilty  of  contributory  negligence.^ 

§4.  Bound  to  use  Extraordinary  Care. —  (1.)  General  Expressions  of  the 
Doctrine.  —  It  is  frequently  said  by  the  courts  that  such  carriers  are  bound  to 
exercise  extraordinary  care  and  skill  to  secure  the  safety  of  their  passengers. 
This  doctrine  will  be  found  in  various  cases,  embodied  in  such  expressions  as 
these:  "The  utmost  degree  of  care  and  skill  in  the  preparation  and  management 
of  the  means  of  conveyance ;  "  ^  "  all  precautions,  as  far  as  human  foresight  will 
go."  *  Another  eminent  court  has  sanctioned  an  instruction  which  told  the  jury 
that  a  common  carrier  of  passengers  is  bound  to  use  greater  than  ordinary  care,  — 
such  care  as  is  used  by  very  cautious  persons ;  and  if  any  reasonable  skill  on  his 
part  could  have  prevented  the  accident,  the  defendant  is  liable."'  "Every  per- 
son who  contracts  for  the  conveyance  of  others  is  bound  to  the  utmost  care  and 
skill;  and  if  through  any  erroneous  judgment  on  his  part  any  mischief  is  occa- 
sioned, he  must  answer  the  consequences."^  "Carriers  of  passengers  for  hire 
are  bound  to  exert  the  utmost  skill  and  prudence  in  conveying  their  passengers, 
and  are  responsible  for  the  slightest  negligence,  or  want  of  skill,  either  in  them- 
selves or  their  servants.  They  are  bound  to  use  such  care  and  diligence  as  the 
most  careful  and  vigilant  man  would  observe  in  the  exercise  of  the  utmost 
prudence  and  foresight."  This  language,  used  in  charging  a  jury,  is  held  well 
sustained  by  the  authorities.^  "A  carrier  of  either  goods  or  passengers  is 
bound  to  provide  a  carriage  or  vehicle  perfect  in  all  its  parts,  in  default  of  which 
he  becomes  responsible  for  any  loss  or  injury  that  may  be  suffered,  provided  it 
happened  without  negligence  or  misconduct  on  the  part  of  the  party  injured.  A 
carrier  of  passengers  is  bound  to  omit  no  precaution  that  may  conduce  to  their 
safety.  He  is  bound  to  guard  beforehand  against  every  apparent  danger  that 
may  beset  them."  ^ 

(2.)  Expressions  in  Railway  Cases.  —  "  The  law,  in  tenderness  to  human  life 
and  limb,  holds  railroad  companies  liable  for  the  slightest  negligence,  and 
compels  them  to  repel  by  satisfactory  proofs  every  imputation  of  such  negli- 
gence."* "When  carriers  undertake  to  convey  passengers  by  the  powerful  and 
dangerous  agejicy  of  steam,  public  policy  and  safety  require  that  they  be  held  to 
the  greatest  possible  care  and  diligence."  i"  Such  carriers  are  bound  to  carry 
safely  those  whom  they  take  into  their  carriages,  as  far  as  human  foresight  and 
care  will  go,  and  are  bound  "to  use  the  utmost  care  and  diligence  of   very 

1  Metropolitan  R.  Co.  v.  Jackson,  3  App.  «  Lord  Ellenborough,  in  Jackson  v.  Tol- 

Cas.  193,  198.  lett,  2  Stark.  37;  s.  c.  3  Eng.  Com.  Law,  233. 

-  See  the  next  chapter.  ^  Sales  v.  Western  Stage  Co.,  4  Iowa,  547. 

3  Ang.   on  Car.,  §  523;    Gardiner,   J.,    in  s  Gibson,  C.  J.,  to  the  jury  in  Xew  Jersey 

liegeman  t?.  Western B.  Corp.,  13  N.  Y.  9,  24,  R.  Co.  v.  Kennard,  21  Pa.  St.  203,  204;  ap- 

aute,  p.  169.  proved  by  the  Supreme  Court,  21  Pa.  St.  209. 

<  2  Kent's  Comm.    602;    Gardiner,    J.,  ut  »  Staples,  J.,  in  Baltimore  etc.  II.  Co.  r. 

sujira.  6  Edwards  v.  Lord,  49  Me.  279.  Wightman,  29  Gratt.  431,  445.  i"  Ibid. 


GENERAL    DOCTRINES.  201 


Bound  to  Extraordinary  Care. 

cautious  persons."  •  They  are  "bound  to  the  most  exact  care  and  diligence, 
not  only  in  the  management  of  the  train  and  cars,  but  also  in  the  structure  and 
care  of  the  track,  and  in  all  the  subsidiary  arrangements  necessary  to  the  safety 
of  passengers."  2  They  are  "  bound  to  exercise  all  the  care  and  skill  which 
human  foresight  and  diligence  can  suggest."  ^  *"  As  far  as  human  care  and  fore- 
sight will  go,'  has  become  almost  a  familiar  form  of  expi-ession  in  stating  the 
rule  of  duty."*  "They  are  bound  to  the  most  exact  care  and  diligence,  not 
only  in  the  management  of  the  trains  and  cars,  but  also  in  the  structure  and  care 
of  the  track,  and  in  all  the  subsidiary  arrangements  necessary  to  the  safety  of 
passengers." »  An  instruction  that  "if  the  defendant  could  have  prevented  the 
accident  by  the  utmost  human  sagacity  and  foresight  with  respect  to  their  track, 
then  the  defendant  is  liable,"  has  been  held  to  be  established  law;  and  it  was 
held  no  error  to  refuse  to  charge  "  that  the  utmost  human  sagacity  required  of  the 
defendant  did  not  require  of  the  defendant  to  take  such  extraordinary  measures 
in  constructing,  operating,  and  maintaining  its  railroad  as  are  not  and  have  not 
been  in  use  in  the  constructing,  operating,  and  maintaining  of  railroads."  * 

"When  carriers  undertake  to  convey  persons  by  the  powerful  but  dangerous 
agency  of  steam,  public  policy  and  safety  require  that  they  be  held  to  the 
greatest  possible  care  and  diligence.  And  whether  the  consideration  for  such 
transportation  be  pecuniary  or  otherwise,  the  personal  safety  of  the  passengers 
should  not  be  left  to  the  sport  of  chance,  or  the  negligence  of  careless  agents. 
Any  negligence,  in  such  cases,  may  well  deserve  the  epithet  of  'gross.'  "  ' 

It  has  been  held,  in  a  well-considered  case  in  New  Hampshire,  not  error  to  tell 
the  jury  that  a  railway  company,  in  the  carriage  of  passengers,  is  bound  to  use 
"the  utmost  care  and  prudence  of  a  very  cautious  person."  This  declaration 
of  law  the  court  found  to  be  not  only  in  accordance  with  the  elementary  books, 
but  sustained  by  the  adjudged  cases.  "It  is  true,"  said  the  court,  "that  the 
terms  used  do  not  furnish  an  exact  measure  of  the  care  required,  but  that 
difficulty  is  inherent  in  the  nature  of  the  subject.  It  has,  however,  this  advan- 
tage, that  it  conforms  substantially  to  the  ordinary  definition  of  the  highest 
degree  of  care  required  of  bailees  of  goods,  and  has,  therefore,  the  sanction  of 
long  use."  8 

"  Railway  companies  who  are  carriers  of  passengers  are  required  to  use  all  the 
means  reasonably  in  their  power  to  prevent  accident.  It  is  not  necessary,  to 
charge  them  with  liability,  that  they  be  guilty  of  great  negligence.  It  is  enough 
if  the  accident  was  caused  solely  by  any  negligence  on  their  part,  however  slight, 
if  by  the  exercise  of  the  sti'ictest  care  or  precaution,  reasonably  within  their 
power,  the  injury  would  not  have  been  sustained."* 

"When  a  railroad  company  engage  in  the  business  of  common  carriers,  [of 
passengers]  they  undertake  that  the  road  is  in  good  travelling  order  and  fit  for 

'  Oliver  v.  New  York  etc.  R.  Co.,  Edm.  Sel.  ^  Virginia  etc.  R.  Co.  v.  Sanger,  15  Gratt. 

Cas.  589.  230,  236. 

2  Shaw,  C.  J.,  in  McElroy  v,  Nashua  etc.  «  Union  Pac.  R.  Co.  v.  Hand,  7  Kan.  380, 392. 
R  Corp.,  4  Cush.  400,  402.  '  Grier,  J.,  in  Phila.  etc.  R.  Co.  v.  Derby, 

3  Blown  V.  New  York  etc.  R.  Co.,  34  N.  Y.  14  How.  486,  ante,  p.  31. 

404,  408  (reversing  s.  c.  31  Barb.  385).  »  Taylor  v.  Grand  Trunk  R.  Co.,  48  N.  H. 

<  Bowen  v.  New  York  etc.  R.  Co.,  18  N.  Y.       304,318. 
408,  411.  0  Mr.  Justice  Davis  to  the  jury  in  Seymour 

V.  Chicago  etc.  R.  Co.,  3  Biss.  43. 


202  LIALULITV    OF    THE    CARRIER    FOR    NEGLIGENCE. 


Notes 


use,  and  that  the  engines  and  can-iages  employed  are  roadworthj'  and  properly 
constructed,  and  furnished  according  to  the  present  state  of  the  art;  and  if  an 
injury  results  from  the  imperfection  of  the  road,  the  carriages,  or  the  engines, 
the  company  are  lial^k',  unless  the  imperfection  was  of  a  character  in  no  degree 
attributable  to  their  negligence.  They  are  also  bound  for  a  due  application,  on 
the  part  of  their  servants  and  agents,  of  the  necessary  attention,  art,  and  skill; 
and  if  the  Injury  to  the  plaintiff  might  have  been  avoided  by  the  utmost  degree 
of  care  and  skill  on  the  part  of  the  agents  and  servants  of  the  company,  they  are 
liable."  It  is  also  proper  to  tell  a  jury  that  the  company  will  be  liable  if  the 
injury  which  happened  might  have  been  avoided  by  the  conductor  "  by  the  most 
skilful  and  prompt  use  of  all  the  means  in  his  power."  i  The  Supreme  Court  of 
Illinois  has  stated  the  rule  to  be,  that  '•  carriers  of  passengers  for  hire  are  bound 
to  use  the  utmost  care  and  diligence  in  providing  for  their  safety,  by  the  use  of 
sufficient  and  suitable  modes  of  conveyance,  in  order  to  prevent  those  injuries 
which  human  care  and  foresight  can  guard  against.  Having  thus  provided  the 
means  of  transportation,  they  are  in  like  manner  to  use  the  utmost  care  and 
diligence  in  managing,  directing,  and  using  those  means,  so  that,  as  far  as  human 
care  and  foresight  can  go,  they  may  guard  against  injury.  Having  done  all  that 
human  care  and  foresight  can  do,  reasonably,  an  injury  happening,  they  are 
not  liable.  Pure  accidents  will  excuse  them.  They  are  not  liable  at  all  events, 
and  the  negligence  of  the  passenger  producing  the  injury,  without  their  fault, 
will  also  relieve  them  from  liability.  But  the  magnitude  of  the  value  of  human 
life  is  such  that  it  requires  of  carriers  of  passengers  this  degree  of  care  and  fore- 
sight. *  *  *  When,  by  the  increased  facilities  for  travel,  so  large  a  portion  of 
the  population  of  our  country  are  intrusted  to  the  care  of  carriers  of  passengers 
by  railroads  and  steamboats,  and  accidents  are  so  lamentably  frequent,  it  would 
not  be  proper  to  relax  this  riile,  for  upon  it  depends  the  safety  of  the  travelling 
public."  ■■'  But  in  a  later  case,  quoted  in  the  next  section,  these  expressions  are 
much  moditled. 

In  an  important  case  in  New  Hampshire,'  the  trial  court  instructed  the  jury  as 
follows:  "The  burden  of  proof  is  on  the  plaintiff  to  show  that  the  accident 
occurred  under  such  circumstances  that  the  defendants  were  liable  for  the  con- 
sequences. Defendants  are  not  insurers,  and  are  not  liable  if  they  have  been  in 
no  fault,  but  they  are  liable  for  the  smallest  negligence.  They  must  provide  a 
good  track;  and  if  there  be  the  least  failure  in  this,  they  are  answerable  for  any 
injury  that  may  happen  in  consequence.  Defendants  are  bound  to  use  the  high- 
est degree  of  care  which  a  reasonable  man  would  use.  This  does  not  mean  the 
utmost  degree  of  care  which  the  human  mind  is  capable  of  imagining,  or,  in 
other  words,  that  care  enough  must  be  taken  to  render  the  passengers  perfectly 
safe;  such  a  rule  would  require  so  great  an  expenditure  of  money,  and  the 
emplojTnent  of  so  many  hands.  Defendants  must  use  such  a  degree  of  care  as 
is  practicable,  short  of  incurring  an  expense  which  would  render  it  altogether 
Impossible  to  continue  the  business.  The  law  does  not  require  such  particular 
precaution  as  it  is  apparent,  after  the  accident,  might  have  prevented  the  injury, 
but  such  as  would  be  dictated  by  the  utmost  care  and  prudence  of  a  very  cautious 

1  Nashville  etc.  R.  Co.  v.  Messino,  1  Sneert  2  Chicago  etc.  R.  Co.  v.  George,  19  111.  510, 

(Tenn.),  220.    Opinion  of  the  court  by  Car-        517. 
ruthers,  J.  a  Taylor  v.  Grand  Trunk  R.Co.,  48  N.  H.  304. 


GENERAL    DOCTRINES.  203 


Bound  to  Extraordinary  Care. 


person  before  the  accident,  and  witliout  l?nowledge  that  it  was  about  to  occur. 
Defendants  must  use  the  higliest  degree  of  practicable  care  and  diligence  that  is 
consistent  with  the  mode  of  transportation  adopted.  They  are  not  obliged  to  use 
•every  possible  preventive  that  the  highest  scientific  skill  might  have  suggested. 
It  is  said  that  they  must  use  the  best  precautions  in  known  practical  use  to 
-secure  safety,  the  most  approved  modes  of  construction  and  machineiy  in 
known  use  in  the  business;  but  this  doctrine  must  be  taken  with  the  qualifica- 
tion that  they  are  not  obliged  to  introduce  improvements  if  the  expense  of 
introducing  them  is  much  greater  in  proportion  than  the  increase  of  safety 
thereby  attained." 

The  Supreme  Court  thought  that  the  general  view  of  the  court  below  taken  in 
this  charge  as  to  the  duties  and  degree  of  care  imposed  upon  carriers  was  cor- 
rect. They  are  bound  to  exercise  the  highest  degree  of  care  and  diligence  in  the 
conduct  of  their  business,  and  are  liable  for  the  smallest  negligence.  "This 
measure  of  care,"  said  the  court,  "  is  applicable  to  carriers  of  passengers  by 
stage-coaches,  where  the  rate  of  speed  is  not  much  above  six  miles  per  hour; 
and  it  is  very  obvious  that  a  higher  degree  of  care  and  skill  is  demanded  in 
the  transportation  of  passengers  by  steam  on  a  railroad,  where  the  speed  is  so 
much  greater."  The  court,  after  reviewing  the  authorities  at  length,  state  that 
they  sustain  the  general  view  taken  by  the  judge  in  his  instruction  to  the  jury ; 
^'and,"  continued  the  court,  "the  question  is  whether  in  the  illustrations  given 
there  was  any  thing  calculated  to  mislead  them.  The  objection  most  urged  is 
the  statement  that  defendants  must  use  such  a  degree  of  care  as  is  practicable, 
short  of  incurring  an  expense  which  would  render  it  altogether  impossible  to 
continue  business.  This  is  substantially  the  language  of  Judge  Redfield,^  and 
is  apparently  based  upon  the  idea  that  the  rule  calling  for  the  utmost  degi-ee  of 
care,  vigilance,  and  precaution  must  be  understood  not  to  require  such  a  degree 
of  vigilance  as  will  be  wholly  inconsistent  with  the  mode  of  conveyance  adopted, 
and  render  it  impracticable.  This  is  the  docti'ine  of  Tidier  v.  Talbot,''  where  it  is 
also  said  that  this  rule  does  not  require  the  utmost  degree  of  care  which  the 
human  mind  is  capable  of  inventing,  as  such  a  rule  would  involve  the  expendi- 
ture of  money  and  the  employment  of  hands  so  as  to  render  it  perfectly  safe,  and 
would  prevent  all  persons  of  ordinary  prudence  from  engaging  in  that  kind  of 
business.  But  the  rule  does  require  that  the  highest  degree  of  pi-acticable  care 
and  diligence  should  be  used  that  is  consistent  with  the  mode  of  transportation 
adopted.  To  the  general  views  thus  expressed  we  perceive  no  objection. 
Indeed,  it  is  quite  manifest,  we  think,  that  in  fixing  upon  the  measure  of  the 
obligation  of  common  carriers  by  railway  to  the  travelling  public,  it  is  proper  to 
consider  how  far  it  is  reasonably  practicable  for  them  to  go,  in  view  of  the 
expenditures  that  might  be  required;  and,  looking  at  the  subject  as  a  whole, 
we  think  it  could  never  have  been  intended  to  fix  upon  a  measure  of  care  that 
would  render  it  practically  impossible  to  continue  this  mode  of  transportation. 

"At  the  same  time,  the  standard  of  care  and  diligence  for  a  particular  railroad 
cannot  be  made  to  depend  upon  its  pecuniary  condition  or  the  amount  of  its 
earnings;  but  having  undertaken  to  carry  passengers  in  that  mode,  its  duty  is  to 
provide  a  track,  rolling-stock,  and  all  other  agencies  suited  to  the  nature  and 

1  2  Redf.  on  Rys.  (Sd  ed.)  187.  «  23  111.  357. 


204  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 


Notes. 


extent  of  the  business  it  proposes  to  do,  and  the  measure  of  its  care  and  dili- 
gence is  not  to  fluctuate  with  the  changes  in  its  revenues.  A  direction  to  the 
jury,  therefore,  that  should  make  the  degree  of  care  required  turn  upon  the 
pecuniary  means  of  this  particular  road  would  be  erroneous.  The  part  of  the 
charge  particularly  objected  to  is  the  direction  that  '  defendants  must  use  such 
degree  of  care  as  is  practicable,  short  of  incurring  an  expense  which  would 
render  it  altogether  impossible  to  continue  the  business.'  This  might,  and 
probably  would,  be  understood  to  require  of  the  defendants  all  practicable  care 
to  the  extent  of  their  means,  which  would  make  the  ability  of  the  corporation 
the  measure  of  the  care  and  diligence  required ;  and  that  obviously  is  not  the 
true  test,  and,  judging  from  other  parts  of  the  instructions,  it  was  not  so  intended. 
Still,  the  terms  used  are  so  explicit  that  there  is  reason  to  fear  that  the  jury  may 
have  been  misled,  and  induced  to  require  as  a  standard  a  higher  degree  of  care 
and  diligence  than  the  law  actually  demands.  It  would  be  quite  likely  to  be  so 
if  it  appeared  that  the  corporation  was  receiving  a  large  income  from  this  busi- 
ness beyond  the  expenses.  If,  on  the  other  hand,  it  appeared  that  the  receipts 
did  not  equal  the  running  expenses,  the  jury  might  feel  at  liberty  to  exact  a 
lower  degree  of  care  and  diligence. 

"In  respect  to  common  highways,  it  has  been  decided  in  this  State  that  the 
standard  by  which  their  sufliciency  is  to  be  tested  is  not  to  be  expanded  or  con- 
tracted by  the  wealth  or  poverty  of  the  town,'  and  we  think  the  same  rule  is 
applicable  to  the  proprietors  of  railroads.  They  are  bound  to  keep  them  in 
suitable  repair,  and  to  operate  them  with  suitable  care  and  diligence,  considering 
the  character  and  extent  of  the  use  to  which  they  are  applied.  As  before 
remarked,  the  passage  under  consideration  is  in  terms  much  like  the  passage  in 
2  Bedfield  on  Bailways,  187 ;  but  upon  a  close  examination  of  his  statement  it  will 
not  be  found  that  the  author  intended  to  announce  the  doctrine  that  the  degree 
of  diligence  was  to  be  measured  by  the  revenues  of  the  particular  railroad,  but 
that  in  fixing  a  general  standard  of  care  and  diligence  there  should  not  be  so 
much  required  as  to  render  this  mode  of  conveyance  impracticable. 

"The  objection  to  the  passage  in  question  now  before  us  is  the  danger  that  the 
jury  may  have  understood  that  the  defendants  were  bound  to  use  all  practicable 
care  and  skill  to  the  extent  of  their  means ;  and  as  we  do  not  know  that  their 
means  were  not  understood  to  be  ample,  we  cannot  be  sure  that  the  jury  were 
not  misled.  The  jury  in  this  case  have  found  that  there  was  gross  negligence, 
and  it  might,  perhaps,  be  urged  that  this  finding  shows  that  no  harm  was  done 
by  the  instructions  in  question.  We  think,  however,  that  in  determining  what 
was  gross  negligence  the  jury  would  naturally  and  properly  be  infiuenced  by  the 
degree  of  care  and  diligence  which  they  supposed  the  law  required ;  and,  if  that 
standard  was  carried  too  high,  they  might  also  come  to  a  wrong  conclusion  as  to 
what  was  gross  negligence.  We  therefore  are  constrained  to  hold  that,  in 
respect  to  the  particular  direction  under  consideration,  the  charge  was 
erroneous."^ 

(3.)  Expressions  in  Stage-Coach  Cases.  —  "The  proprietors  of  stage-coaches 
which  ply  between  different  places,  and  carry  passengers  for  hire  and  compensa- 
tion, are  responsible  for  all  accidents  and  injuries  happening  to  the  persons  of 

I  Winship  v.  Enfield,  42  N.  H.  197,208.  2  pg,-  Bellows,  J.,  4S  N.  H.  316,  318. 


GENERAL    DOCTRINES.  205 


Bound  to  Extraordinary  Care. 

the  passengers  which  could  have  been  prevented  by  human  care  and  foresight."  ^ 
''Passenger-carriers  are  liable  for  injuries  resulting  from  even  the  slightest  neg- 
ligence. *  *  *  They  are  bound  to  use  the  utmost  care  and  diligence  of  cau- 
tious persons  to  prevent  injury  to  passengers."*  "The  carrier  cannot  be  said 
to  have  fulfilled  the  requirements  of  the  law  so  long  as  there  exists  any  known 
want  of  safety  in  his  coaches,  harness,  etc.,  whether  arising  from  defectiveness 
of  materials  or  workmanship,  or  faultiness  of  the  principles  on  which  they  are 
constructed,  for  which  there  is  any  known  remedy  used  wisely  as  a  means  of 
safety  by  others  of  skill  and  sound  judgment  engaged  in  the  same  business." ' 
"While  it  is  true  that  the  proprietors  of  stage-coaches  do  not  warrant  the  safety 
of  passengers  in  the  same  sense  that  they  warrant  the  safe  carriage  of  goods, 
yet  they  do  warrant  that  safety  so  far  as  to  covenant  for  the  exercise  of  extraor- 
dinary diligence  and  care  to  insure  it;  and  they  do  this  as  common  carriers."  * 
[n  Connecticut,  the  highest  degree  of  care  which  a  reasonable  man  would  use 
is  required.^  "  This  rule  applies  alike  to  the  character  of  the  vehicle,  the  horses, 
and  harness,  to  the  skill  and  sobriety  of  the  driver,  and  to  the  manner  of  con- 
ducting the  stage  under  every  emergency  or  difficulty.  *  *  *  The  stage- 
ow^ner  does  not  warrant  the  safety  of  passengers;  yet  his  undertaking  and 
liability  as  to  them  go  to  this  extent:  that  he  or  his  agent  shall  possess  com- 
petent skill,  and  that,  as  far  as  human  foresight  and  care  can  reasonably  go, 
lie  will  transport  thera  safely.  He  is  not  liable  for  injuries  happening  to  pas- 
sengers from  sheer  accident  or  misfortune,  where  there  is  no  negligence  or  fault, 
and  where  no  want  of  caution,  foresight,  or  judgment  would  prevent  the  injury. 
But  he  is  liable  for  the  smallest  negligence  in  himself  or  his  driver."  ^ 

(4.)  Expressions  in  Steamboat  Cases. —  "The  carrier  of  passengers,  especially 
in  vehicles  and  conveyances  propelled  by  steam,  where  the  consequences  of  an 
accident  from  defective  machinery  are  almost  certainly  fatal  to  human  life,  is 
bound  to  use  every  precaution  which  human  skill,  care,  and  foresight  can  pro- 
vide, and  to  exercise  similar  care  and  foresight  in  ascertaining  and  adopting  new 
improvements  to  secure  additional  protection."'  "Carriers  of  passengers  are 
not  insurers  of  the  safety  of  persons  Avhom  they  carry ;  nor  do  they  undertake 
that  the  vessels  or  vehicles  which  they  use,  or  that  the  machinery  they  employ, 
are  absolutely  free  from  defects.  They  are  held  to  the  exercise  of  the  utmost 
skill  and  care  in  the  construction  and  management  of  both;  and  when  they 
undertake  to  carry  by  the  dangerous  agency  of  steam,  and  injury  is  occasioned 
to  passengers  thereby,  they  cannot  escape  liability,  unless  it  appears  that  the 
accident  happened  from  causes  beyond  their  control,  and  to  which  neither  the 
negligence  of  the  carrier,  or  of  the  manufacturer  of  the  machinery,  or  those 
employed  to  manage  it,  contributed."  * 


'  This  instruction  to  the  jury  was  held  ^  Hall   v.  Connecticut   River   Steamboat 

quite  as  moderate  towards  the  proprietors  Co.,  13  Conn.  319,  326. 

of  stagecoaches  as  the  authorities   would  «  Derwort  t).  Loomer,  21  Conn.  245,  253. 

justify.    Frink  v.  Coe,  4  G.  Greene,  5.55.  '  Church,  C.  J.,  in  Caldwell  v.  New  Jersey 

2  Charge  to  the  jury  in  Parish  v.  Reigle,  Steamboat  Co.,  47  N.  Y.  282,  288. 

llGratt.  097,  700.    Approved  by  the  Supreme  "  Andrews,  J.,  in  Carroll  v.  Staten  Island 

Court,  id.  712,  713.  R.  Co.,  58  N.  Y.  126,  138.    See  also  Str.  New 

3  Id.  717,  per  Daniel,  J.  World  v.  King,  ante,  p.  175. 
••  Fairchild  v.  Cal.  Stage  Co.,  13  Cal.  599. 


206  LIABILITY    OF    THE    CARRIER    FOR   NEGLIGENCE. 


Notes. 


§  5.  Modified  Expressions  of  this  Rule  in  American  Cases,  —  On  the  other 
hand,  the  carrier  is  not  bound  to  guard  against  defects  which  "  nothing  short  of 
superhuman  prevision  could  have  discovered."  ^  "The  utmost  care  and  vigi- 
lance is  required  on  the  part  of  the  carrier.  This  rule  does  not  require  the 
utmost  degree  of  care  which  the  human  mind  is  capable  of  imagining,  but  it 
does  require  that  the  highest  degree  of  practicable  care  and  diligence  should  be 
adopted  that  is  consistent  with  the  mode  of  transportation  adopted.  Railway 
passenger-carriers  are  bound  to  use  all  reasonable  precautions  against  injury  of 
passengers ;  and  these  precautions  are  to  be  measured  by  those  in  known  use  in 
the  same  business  which  have  been  proved  by  experience  to  be  efficacious.  The 
company  are  bound  to  use  the  best  precautions  in  known  practical  use,  *  *  * 
but  not  every  possible  preventive  which  the  highest  scientific  skill  might  sug- 
gest." ^  "The  utmost  which  human  knowledge,  human  skill,  and  human 
foresight  and  care  can  provide  is  all  that  in  reason  can  be  required.  To 
ask  more,  is  to  prohibit  the  running  of  railways,  unless  they  possess  a  capital 
and  surplus  which  will  enable  them  to  add  a  new  element  to  their  business,  — 
that  of  insurance.  Nor  can  we  carry  the  requirement  beyond  the  use  of  known 
machinery,  and  modes  of  using  it.  Railroads  must  keep  pace  with  science  and 
art  and  modern  improvement,  in  their  application  to  the  carriage  of  passengers, 
but  are  not  responsible  for  the  unknown  as  well  as  the  new."  ^ 

In  the  view  of  the  Supreme  Court  of  Illinois,  the  rule  is  not,  without  qualifica- 
tion, that  a  railway  company  employed  in  transporting  passengers  must  do  all 
that  human  care  and  vigilance  can  do,  both  in  providing  safe  coaches,  machinery, 
ti-acks,  and  roadway,  and  in  keeping  the  same  in  repair ;  but  it  is  that  the  carrier 
shall  do  all  that  human  care,  vigilance,  and  foresight  can  reasonably  do  to  these 
ends,  consistently  with  the  mode  of  conveyance  and  the  practicable  operation  of 
the  road.*  Such  a  rule,  it  is  said,  would  prevent  persons  of  ordinary  prudence 
from  engaging  in  that  character  of  business.^ 

§  6.  The  modern  English  Rule  of  Reasonable  Care.  —  The  modern  English 
rule  appears  to  be  that  carriers  of  passengers,  even  railway  companies  carry- 
ing by  the  agency  of  steam,  "  are  only  bound  to  the  care  and  caution  which 
may  be  reasonably  expected  to  be  used  by  reasonable  men."  The  measure  of 
their  liability  is  thus  brought  down  to  the  standard  of  ordinary  or  reasonable 
care  which  obtains  in  other  circumstances.*  Accordingly  we  find  the  rule  laid 
down  by  the  English  judges  thus  :  "  The  contract  of  the  company  with  the  plain- 
tiff was  to  carry  him  with  reasonable  safety." '    The  real  question  is,  whether 

1  Crogan  v.  New  York  etc.  K.  Co.,  18  Alb.  "  Payne  v.  Great  Northern  R.  Co.,  2  Fost. 
L.  J.  70.  &  Fin.  619,  621 ;  Withers  v.  North  Kent  R.  Co.,. 

2  Charge  of  Thayer,  J.,  in  Meier  v.  Penn-  27  L.  J.  (Exch.)  417 ;  Bird  v.  Great  Northern 
sylvauia  R.  Co.,  64  Pa.  St.  225,  approved  by  R.  Co.,  28  L.  J.  (Exch.)  3.  See  also  Birkett 
the  Supreme  Court,  and  said  by  Agnew,  J.,  v.  Whitehaven  etc.  R.  Co.,  4  Hurl.  &  N.  730; 
to  be  a  correct  summary  of  the  law.  «.  c.  28  L.  J.  (Exch.)  348;  Wj'born  v.  Great 

3  Agnew,  J.,  ibid.  Northern  R.  Co.,  1  Fost.  &  Fin.  162 ;  and  espe- 
*  Pittsburgh  etc.  R.  Co.  v.  Thompson,  56       cially  the  late  case  of  Metropolitan  R.  Co.  v. 

lU.  138 ;  Tuller  v.  Talbot,  23  111.  357.  Jackson,  3  App.  Cas.  193. 

5  Tuller  V.  Talbot,  supra.    See,  however,  '  Brett,  J.,  in  Richardson  t;.  Great  Eastern, 

a  more  stringent  doctrine  in  an  earlier  case       R.  Co.,  L.  R.  10  C.  P.  490. 
in  the  same  State,  quoted  in  subsect.  2  of 
the  preceding  section. 


GENERAL    DOCTRINES. 


207 


Rule  of  "Reasonable  Care." 


the  defendants  performed  their  duty  with  reasonable  diligence.'  "It  was  for 
the  plaintiff  to  prove  negligence ;  the  defendants'  undertaking  was,  not  to  carry 
safely,  but  to  carry  with  reasonable  care."  ^  Moreover,  we  find  that  the  English 
courts  have  adapted  their  procedure,  in  actions  for  injuries  sustained  by  passen- 
gers, to  conform  to  this  idea.  In  all  actions  founded  on  negligence,  the  question 
whether  the  defendant  has  been  guilty  of  a  want  of  ordinary  care  being,  in 
general,  a  question  for  the  jury,^  we  find  they  direct  the  jury  to  inquire  what 
the  duty  of  the  defendant  was  in  the  pj-emises.  This  is  well  illustrated  in  the 
case  of  Bichardson  v.  Great  Eastern  Bailway  Company,  set  out  at  some  length 
in  another  section.'' 

§  7.  American  Expressions  of  this  Rule.  —  The  courts  have,  for  the  most 
part,  abandoned  the  habit  of  dividing  care,  and  its  antithesis,  negligence,  into 
degrees.''  The  expression  "extraordinary  care,"  in  the  view  of  some  courts, 
means  no  more  than  that  the  carrier  must  use  reasonable  care ;  that  this  reason- 
able care  is  a  relative  term,  having  reference  to  the  duties  which  the  carrier  has 


1  Lord  Coleridge,  C.  J.,  id.  491. 

2  Pollock,  C.  B.,  in  Bird  v.  Great  Northern 
R.  Co.,  28  L.J.  (Exch.)  3. 

3  2  Thomp.  on  Neg.,  p.  1239. 

*  It  migiit  be  worth  while  to  inquire  into 
the  change  of  judicial  sentiment,  which,  be- 
ginning with  the  doctrine  that  the  proprietor 
of  a  stage-coach  drawn  by  horses  was  a  war- 
rantor of  the  soundness  and  safety  of  his  ve- 
hicle, ended  by  making  the  proprietor  of  a 
railway  train  propelled  by  steam,  at  five  or 
.=ix  times  the  speed  of  the  stage-coach,  liable 
only  for  a  want  of  what  the  books  term  "  rea- 
sonable care."  Certainly  if  it  is  right  to  tell 
a  jury  that  a  stage  proprietor  is  bound  to 
furnish  a  safe  vehicle,  it  is  not  right  to  tell 
them  a  railway  company  is  only  bound  to  use 
reasonable  care  to  the  same  end.  The  dif- 
ference between  the  old  rule  and  this  mod- 
ern English  rule,  if  it  can  be  said  to  be  an 
established  rule,  is  vital.  The  old  rule 
necessarily  and  logically  carried  with  it  the 
rule  that  the  mere  happening  of  the  acci- 
dent to  the  carrier's  vehicle,  or  other  means 
of  transportation,  was  primd  facie  sufficient 
to  charge  him,  and  cast  upon  him  the  burden 
of  excusing  himself.  But  under  the  modern 
rule,  we  find  the  judges  looking  beyond  the 
mere  happening  of  the  accident  for  what  is 
termed  "  evidence  of  negligence."  Thus,  in 
one  case,  where  the  injury  occurred  from  the 
fracture  of  a  rail,  the  jury  were  told  by  Lord 
Cockburn,  C.  J.,  that  if  they  should  be  of 
opinion  that  the  accident  was  thus  caused, 
and  that  the  use  of  the  rail  was  negligence  on 
the  part  of  the  comjiany,  the  plaintiff  was 
entitled  to  their  verdict.  The  question  of 
the  burden  of  ijroof,  however,  in  this  case 


was  not,  it  must  be  confessed,  distinctly 
presented.  But  in  Withers  v.  North  Kent  K. 
Co.,  27  L.  J.  (Exch.)  417  (affirming  s.  c.  1  Fost. 
&  Fin.  165),  where  a  railway  train  went  ofE 
the  track  in  consequence  of  the  track  being 
washed  away  by  an  extraordinary  rain,  it 
was  said  by  Bramwell,  B.,  in  his  opinion, 
that  negligence  must  be  shown  by  the 
plaintiff,  and  that  the  defendants  were  bound 
to  know  only  that  which  could  he  knoion  by  the 
exercise  of  ordinary  care  and  diligence.  In 
the  later  case  of  Great  Western  R.  Co.  v. 
Braid,  1  Moo.  P.  C.  C.  (N.  S.)  101  (s.  c.  9  Jur. 
(N.  s.)  339;  11  Week.  Rep.  444),  this  doctrine 
was  not  followed  so  far  as  it  related  to  the 
burden  of  proof.  But  in  Bird  v.  Great  West- 
ern R.  Co.,  28  L.  J.  (Exch.)  3,  Pollock,  C.  B., 
said  that  whether  the  mere  happening  of  the 
accident  was  primd  facie  evidence  of  negli- 
gence depended  on  the  nature  of  the  acci- 
dent. For  instance,  if  the  accident  arose 
from  the  collision  of  two  trains  on  the  same 
line,  then  he  admitted  that  it  might  be  so. 
But  where  the  accident  consisted  of  the  train 
running  off  the  track,  he  held  that  the  rule 
was  different.  Here  it  was  for  the  plaintiff 
to  prove  negligence.  The  defendants'  un- 
dertaking was  not  to  carry  safely,  but  to 
carry  with  reasonable  care.  See,  however, 
Skinner  v.  London  etc.  R.  Co.,  5  E.xch.  780, 
where  Pollock,  C.  B.,  followed  the  rule  of 
Lord  Denman,  C.  J.,  in  Carpue  v.  London 
etc.  R.  Co.,  5  Q.  B.  751,  and  held  that  a  col- 
lision of  railway  trains  was  primd  facie  evi- 
dence of  negligence.    See  §  9,  iTifra. 

■'  See  Str.  New  World  v.  King,  ante,  p.  175; 
2  Thomp.  on  Neg.,  p.  844;  Whart.  on  Neg., 
chap.  1. 


208  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 


Notes. 


undertaken  and  to  the  risks  incident  to  the  business.  It  means  nothing  more 
than  this :  tliat  the  carrier,  being  intrusted  with  the  most  important  interests, 
namely,  with  human  lives,  must  use  a  degree  of  care  commensurate  with  those 
interests,  and  have  at  the  same  time  due  regard  for  the  practical  exigencies 
of  the   business.' 

In  a  late  case  in  the  Supreme  Court  of  Michigan,  involving  the  liability  of  rail- 
way carriers  of  passengers,  Campbell,  J.,  delivering  the  opinion  of  the  court, 
says :  "  If  they  exercise  their  functions  in  the  same  way  with  prudent  railway 
companies  generally,  and  furnish  their  road  and  run  it  in  the  customary  manner 
which  is  generally  fouud  and  believed  to  be  safe  and  prudent,  they  do  all  that  is 
incumbent  upoji  them."  The  court  cite  in  support  of  this  view  several  Michigan 
cases, '^  and  also  recent  cases  in  the  English  courts,  holding  the  same  doctrine;  * 
and  the  New  York  cases  on  the  same  subject  are  referred  to  with  disapproval. 
"They,"  continues  the  learned  judge,  "entirely  ignore  the  true  ground  of 
responsibility  as  depending  on  the  actual  negligence  of  the  carrier.  There  is  no 
such  thing  as  implied  negligence,  when  there  is  none  in  fact."  * 

But  we  must  ignore  the  teachings  of  nearly  all  the  cases*  unless  we  con- 
clude that  a  court  is  warranted,  in  all  actions  of  this  kind,  in  telling  the 
jury  that  the  carrier  is  bound  to  exercise  for  the  safety  of  his  passen- 
gers a  higher  degree  of  care  than  that  which  springs  out  of  ordinary  social 
obligations ;  that  he  is  bound  to  exercise  the  highest  degree  of  care  to  which 
human  skill  and  foresight  can  attain,  consistent  with  the  carrying  on  of  the  busi- 
ness and  with  the  known  methods  and  the  present  state  of  the  particular  art.  ^ 

^  Sawyer  v.  Hannibal  etc.  R.  Co.,  37  Mo.        tions  in  knoion  practical  use  for  securing  the 

240,  2f)0;  Le  Barron  v.  East  Boston  Ferry  safety  and  convenience  of  their  passengers. 
Co.,  11  Allen,  312.  If  they  have  done  so,  they  have  done  their 

*  Michigan  etc.  R.  Co.  «. Coleman, 28  Mich.  duty  and  are  not  guilty  of  negligence;  if 
440;  Grand  Rapids  etc.  R.  Co.  «.  Jiidson,  34  they  have  failed  in  their  duty,  and  their  ueg- 
Mich.  506;  Fort  Wayne  etc.  R.  Co.  v.  Gilder-  ligence  has  caused  the  injury,  then  they  are 
sleeve, 3:5  Mich.  133;  Michigan  etc.  R.  Co.  r.  liable  in  the  action.  You  are  to  consider 
Dolan,  32  Mich.  510.  what  is  reasonable  care,  and  whether  they 

^  Richardson  V.  Great  Eastern  R.  Co.,  1  C.  have  used  the  proper  precautions.    Theyai'e 

P.  Div.  342;  Daniel  v.  Metropolitan  R.  Co.,  intrusted  with  most  important  interests, — 

L.  R.  5  H.  L.  45;  Readhead  v.  Midland  R.  Co.,  with  human  lives,  — and  a  jury  may  reason- 

ante,  p.  124.  ably  require  an  amount  of  care  proportioned 

*  Grand  Raiiids  etc.  R.  Co.  v.  Huntley,  38  to  those  interests.  At  the  same  time,  a  jur.v 
Mich.  537,  546,  548.  would  not  be  entitled  to  expect  the  utmost 

'■'  Supra,  §  4.  care  that  could  possibly  be  conceived,  or  the 
«  Oliver  v.  New  York  etc.  R.  Co.,  1  Edm.  highest  possible  degree  of  skill.  It  is  to  be 
Sel.  Cas.  589;  Kansas  Pacific  R.  Co.  «.  Mil-  borne  in  mind  that  railways  themselves  are 
ler,  2  Col.  442;  Sullivan  i;.  Phila.  etc.  R.  of  recent  introduction,  and  that  their  man- 
Co.,  30  Pa.  St.  234;  Wilkie  v.  Bolster,  3  E.  D.  agement  is  a  matter  of  experience  and  of 
Smith,  327;  Houston  etc.  R.  Co.  v.  Gorbett,  practical  knowledge  which  increases  day  by 
49  Texas,  573;  Caldwell  v.  Murphy,  1  Duer,  day.    It  is  not  to  be  expected  that  the  direc 

241.  This  doctrine  was  thus  admirably  ex-  tors  shall  at  once  have  in  use  every  inveutioii 
pressed  by  Erie,  C.  J.,  in  charging  a  jury:  or  discovery  of  science.  It  is  sufficient  if 
"  Negligence  is  not  to  be  defined,  because  it  they  use  every  precaution  in  known  practicul 
involves  some  imjuiry  as  to  the  degree  of  wse,  for  the  so/e^.v  and  conrejwence  of  the  pas- 
care  required,  and  that  is  the  degree  which  seugers.  ^o</i  objects  must  be  looked  to.  It 
the  jury  think  is  reasonably  to  be  required  is  easy  to  conceive  a  precaution  —  forexam- 
from  the  parties,  considering  all  the  circum-  pie,  a  slower  rate  of  speed  —  which  would 
stances.  The  railway  company  is  bound  to  add  a  very  small  degree  of  security,  while  it 
take  reasonable  care;  to  use  the  best precau-  would  entail  a  very  great  degree  of  incon- 


GENERAL    DOCTRINES.  209 


Presumption  from  Fact  of  Accident. 

It  is  not  a  denial,  but  a  just  application,  of  this  principle,  that  the  degree  of 
care  required  in  a  carrier  of  passengers  by  stage-coaches,  in  the  preparation  and 
management  of  the  means  of  conveyance,  is  not  a  test  of  that  which  is  required 
of  those  engaged  in  transporting  persons  at  a  high  rate  of  speed  by  means  of 
steam-power  upon  a  railway.  • 

§  8.  Limitations  upon  the  Rule  of  Extraordinary  Care.  —  The  rule  imposing 
upon  the  carrier  of  passengers  the  highest  degree  of  care  has  this  limitation : 
it  applies  only  to  those  means  and  measures  of  safety  which  the  passenger  of 
necessity  must  trust  wholly  to  the  carrier.  It  is,  in  general,  applicable  only  to 
the  period  during  which  the  carrier  is  in  a  certain  sense  the  bailee  of  the  person 
of  the  passenger.  We  have  seen  in  the  previous  chapter  that  where  the  passen- 
ger is  injured  by  reason  of  certain  defects  in  the  buildings  or  grounds  of  the 
carrier  before  the  transit  has  commenced  or  after  it  has  ended,  the  carrier  is  or  is 
not  liable,  accordingly  as  he  has  or  has  not  been  guilty  of  a  want  of  ordinary  care. 
In  this  respect  he  occupies  toward  the  passenger  the  precise  relation  of  any 
other  owner  of  real  property  towards  his  customers  who  come  upon  his  premises 
by  his  invitation,  expressed  or  implied,  to  do  business  with  him.  So,  as  to  those 
buildings,  platforms,  grounds,  etc.,  supplied  by  the  carrier  for  the  use  of  the 
passenger,  where  the  latter  is  not  merely  passive,  —  as,  the  means  of  entrance 
to  or  of  exit  from  his  vehicle, — if  the  passenger  is  injured  on  account  of 
any  visible  defects,  under  such  circumstances  that  his  own  want  of  care  may  be 
supposed  to  mingle  to  some  extent  as  an  ingredient  in  the  accident,  the  carrier 
will  not,  it  seems,  be  held  liable  for  not  having,  in  the  construction  or  repair  of 
the  particular  instrumentality,  exercised  extraordinary  care.  Thus,  a  passenger, 
in  making  his  exit  from  a  steamboat,  slips  upon  the  smooth  and  slippery  surface 
of  a  plate  of  brass  with  which  the  steps  are  covered,  falls,  and  is  injured.  The 
particular  stairs  are  finished  in  the  same  manner  as  the  best  river-boats  and 
American  sea-going  steamers.  The  carrier  is  not  liable  for  this  injury,  and  it 
is  error  to  refuse  a  nonsuit.^  The  flap  of  a  ferry-boat  is  not  made  after  the  latest 
and  most  approved  pattern,  and  does  not  present  an  even  surface  for  teams  to 
drive  over  in  making  their  exit  from  the  boat.  A  man  with  his  horses  and  sled 
attempts  to  drive  off  the  boat.  His  sled  strikes  the  edge  of  the  flap,  and  is 
brought  up  with  a  sudden  jerk,  which  precipitates  his  load  forward  upon  him  and 
injures  him.  The  ferry  company  is  not  liable  simply  because  it  did  not  adopt 
the  latest  improvement  in  the  means  of  exit  of  vehicles  from  its  boat.^ 

§9.  Presumption  of  Negligence   from  the  happening  of  the  Accident. — 

Although  it  is  never  strictly  true,  in  relations  not  springing  out  of  contract,  that 
a  presumption  of  negligence  arises  from  the  mere  fact  that  an  accident  has 
happened,  without  more, — that  is,  the  mere  fact  that  A.  has  been  accidentally 

venience.    And  a  company  ought  not  to  be  Y.  9  (affirming  ».  c.  16  Barb.  353),  ante,  p. 

found  guilty  merely  because  they  possibly  160. 

might  have  done  something  more  for  safety,  "  Crocheron  v.  North  Shore  Staten  Island 

al  a  far  greater  sacrifice  of  convenience."  Ferry  Co.,  56  N.  Y.  656  (reversing  s.  c.   1 

Ford  V.  London  etc.  R.  Co.,  2  Fost.  &  Fin.  Thomp.  &  C.416). 

730,  732.  ^  Le  Barron  v.  East  Boston  Ferry  Co.,  11 

1  Hegeman  v.  Western    R.  Corp.,  13   N.  Allen,  312. 

14 


210  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 


Notes. 


injured  will  not  raise  a  presumption  that  B.  has  injured  him,  — j'et,  where  A.  has 
for  a  consideration  undertaken  a  certain  duty  to  B.,  and  has  failed  in  the  per- 
formance of  it,  it  is  obvious  that  B.  makes  out  a  case  for  damages  against  A.  by 
proving  that  A.  has  undertaken  that  duty  and  failed  in  its  performance,  without 
more.  Of  coui'se,  this  supposes  that  B.'s  evidence  simply  discloses  facts  suffi- 
cient to  show  the  undertaking  of  such  duty  of  A.,  and  A.'s  failure  to  perform  it. 
It  may  be  that  in  attempting  to  make  this  appear,  B.  will  be  obliged  to  give 
evidence  of  circumstances  which,  while  showing  the  undei-taking  of  the  duty,  and 
the  failure,  carry  along  with  them  evidence  of  a  legal  excuse  on  the  part  of  A. 
for  not  discharging  the  duty  which  he  had  undertaken.  Thus,  a  railway  company 
undertakes  to  transport  B.  from  the  city  of  C.  to  the  city  of  D.  A  bridge  upon 
the  company's  road  has  Ijcen  burnt  down,  and,  notwithstanding  due  inspection  of 
its  road  by  the  company,  this  fact  is  not  discovered  until  the  train  on  which  B.  is 
is  plunged  into  the  chasm  and  B.  is  killed.  Under  a  statute  providing  for  the 
survival  of  actions  in  cases  where  the  injury  results  in  death,  B.'s  widow  brings 
an  action  against  the  railway  company.  Now,  it  is  supposed  that  if  her  evidence 
shows  that  the  company  contracted,  for  a  consideration,  to  carry  B.  as  stated, 
and  that  owing  to  the  burning  of  one  of  the  company's  bridges  an  accident 
happened  in  which  B.  was  killed,  she  makes  out  a  case  against  the  company. 
But  suppose  that  the  evidence  that  she  is  obliged  to  introduce  touching  the  facts 
of  the  accident  shows  that  the  bridge  was  burned  down  by  a  hostile  force  at  war 
with  the  constituted  authorities  of  the  government.  Here,  it  is  supposed,  the 
evidence  taken  together  would  not  raise  a  presumption  of  negligence  on  the  part 
of  the  company,  and  would  not  be  sufficient  to  make  out  her  case,  unless  she 
should  also  show  that,  notwithstanding  the  bridge  was  burnt  by  the  public 
enemy,  if  it  had  been  properly  watched,  the  men  in  charge  of  the  train  would 
have  been  apprised  of  the  accident  in  time  to  have  avoided  the  consequence  from 
it  which  happened. •  Again,  the  evidential  facts  introduced  by  the  plaintiff  may 
be  such  as  to  present  at  the  same  time  evidence  of  negligence  on  the  part  of  the 
defendant  and  of  contributory  negligence  on  his  own  part.  For,  although  the 
carrier  is  under  a  high  degree  of  care  to  carry  the  passenger  in  safety,  this  does 
not  absolve  the  passenger  from  the  duty  of  taking  ordinary  care  to  avoid  being 
injured.  If  the  evidence  for  the  plaintiff  is  of  such  a  character  as  to  present  at 
the  same  time  these  two  questions  alone,  then  the  question  as  to  the  burden  of 
proof  does  not  arise  at  all ;  it  will  be  for  the  court  to  consider  whether  the  facts 
in  proof  amount  to  what  the  books  term  evidence  of  negligence  in  the  carrier,  and 
also  whether  they  amount  to  evidence  of  negligence  in  the  passenger. - 

In  conformity  with  these  views  and  with  the  weight  of  authority,  we  may  state 
the  general  rule  to  be,  that  where  an  injury  happens  to  the  passenger  in  conse- 
quence of  the  breaking  or  failure  of  the  vehicle,  roadway,  or  other  appliances 
owned  or  controlled  by  the  carrier,  and  used  by  him  in  making  the  transit,  the 
person  entitled  to  sue  for  an  injury  makes  out  a  primt  facie  case  for  damages 
against  the  carrier  by  showing  the  contract  of  carriage,  that  the  accident 
happened  in  consequence  of  such  breaking  or  failure,  and  that  in  consequence  of 

'  Sawyer  v.  Hannibal  etc.  R.  Co.,  37  Mo.  s.  c.  42  L.  J.  (Q.  B.)  105;  21  Week.  Rep.  5S4; 

240,  260.  28  L.  T.  (N.  S.)  282.    See  also  Laing  v  .Colder* 

2  A  good  illustration  of  this  is  the  case  of  8  Pa.  St.  479. 
Gee  V.  Metropolitan  li.  Co.,  L.  11.  8  Q.  B.  161 ; 


GENERAL    DOCTRINES.  211 


Presumption  from  Fact  of  Accident. 

this  accident  he  sustained  damage.  When  these  facts  are  made  to  appear,  it  will 
devolve  upon  the  carrier  to  excuse  this  primd  facie  failure  of  duty ;  to  show  that 
notwithstanding  the  accident  happened,  as  shown  by  the  plaintiff's  evidence, 
it  happened  in  spite  of  the  use  by  himself,  his  servants,  and  the  contractors  by 
whom  his  roadway,  appliances,  and  vehicles  were  built,  of  the  greatest  degree  of 
diligence  practicable  under  tlie  circumstances.  In  other  words,  he  must  show, 
in  order  to  rebut  this  presumption,  that  the  accident  resulted  from  circumstances 
against  which  human  care  and  foresight  could  not  guard.'  If  he  makes  it  appear 
that  he,  and  the  agents  and  contractors  whom  he  has  employed,  have  discharged 
tlie  very  high  measure  of  care  and  skill  which,  as  already  seen,  the  law  puts  upon 
him,  he  will  be  entitled  to  a  verdict  of  acquittal.  This  rule  may  possibly  be  made 
clearer  by  stating  it  in  a  different  way.  It  means  that  while  the  burden  is  on  the 
j)laintiff  generally  to  maintain  the  affirmative  of  the  issue,  yet  he  discharges  this 
])urden  by  showing  that  the  accident  happened  through  the  failure  of  some  of  the 
means  adopted  and  used  by  the  carrier  in  attempting  to  make  the  transit.  He  is 
not  required  to  go  further,  and  show  affirmatively  that  the  high  degree  of  care, 
5;kill,  and  foresight  which  the  law  puts  upon  carriers  would  have  avoided  the 
iiccident.-  The  law,  looking  both  to  the  convenience  and  justice  of  the  case, — 
convenience,  because  the  evidence  is  generally  in  the  possession  of  the  defendant 
and  not  in  that  of  the  plaintiff;  and  justice,  because  the  plaintiff  should  not  be 
required  to  give  evidence  as  to  facts  which  are  known  to  the  defendant  and  not  to 
him,  and  which  the  defendant  is  interested  in  withholding  from  him,  —  requires 
the  defendant  to  prove  affirmatively  that  such  care  and  skill  were  exercised. 

To  state  cases  in  illustration  of  this  rule :  A  passenger  is  injured  in  conse- 
quence of  a  stage  breaking  down,^  or  overturning ;*  or  of  ahorse  hitched  to 
an  omnibus  kicking  through  a  front  panel  of  the  vehicle;^  or  of  the  horses 
starting  up  while  the  passenger  is  aligliting;^  or  of  an  embankment  of  the 
railway  giving  way ; '  or  by  the  train  running  off  the  track,8  or  colliding  with 

1  Boweu  V.  New  York  etc.  R.  Co.,  18  N.  Y.  v.  Yarwood,  15  111.  468;  s.  c.  17  111.  509;  3Ic- 

408;   Christie  v.  Griggs,  ante,  p.  181;  Balti-  Lean  v.  Burbank,  11  Minn.  277;  Sawyer  v. 

more  etc.  R.  Co.  v.  Wiglitman,  29  Gratt.  431,  Hannibal  etc.  R.  Co.,  37  Mo.  240,  260. 
444;  Great  Western  R.  Co.  v.  Braid,  1  Moo.  -  Caldwell  v.  New  Jersey  steamboat  Co., 

P.  C.  C.  101 ;  8.  c.  9  Jur.  (N.  8.)  339;  11  Week.  47  N.  Y.  282. 

Rep.  444;  Carpue  v.  London  etc.  R.  Co.,  5  Q.  ^  Christie  v.  Griggs,  ante,  p.  181;  Ware  r. 

B.  749,  per  Lord  Denman,  C.  J.,  at  nisi  prius;  Gay,  11  Pick.  106. 

Skinner  v.  London  etc.  R.  Co.,  5  Exch.  786;  *  Farish  v.  Reigle,  11  Gratt.  697;  Stokes  v, 

Meier  v.  Pennsylvania  R.  Co.,  64  Pa.  St.  225;  Saltonstall,  ante,  p.  183;   McKinney  v.  Neil,  1 

Laing  r.  Colder,  8  Pa.  St.  479,  483,  per  Bell,  McLean,  540;   Stockton  v.  Frey,  4  Gill.  406; 

J.;    Sullivan   v.  Phila.  etc.   R.   Co.,  30  Pa.  Fairchild    v.  California  Stage  Co.,  13   Cal. 

St.    234,    239;    Farish    v.    Reigle,    11    Gratt.  599. 

697;  Wilkie  v.  Bolster,  3  E.  D.  Smith,  327;  *  Simson  v.  London  etc.  Omnibus  Co.,  L. 

Stokes  V.  Saltonstall,  ante,  p.  183;  Railroad  R.  8  C.  P.  390;  s.  c.  42  L.  J.  (C.  P.)  112;  21 

Co.    V.    Pollard,    22    Wall.    3^11;     Holbrook  Week.  Rep.  595;  28  L.  T.  (N.  S.)  550. 
r.    Utica    etc.    R.    Co.,    16    Barb.    113    (af-  '■  Roberts  r.  Johnson,  58  N.  Y.  613  (afflrm- 

Jirmed  12  N.  Y.  236) ;  Toledo  etc.  R.  Co.  v.  ing  s.  c.  5  Jones  &  Sp.  157). 
Beggs,  85  111.  80;  Pittsburgh  etc.  R.  Co.  v.  '  Great  Western  R.  Co.  v.  Braid,  1  Moo.  P. 

Thompson,  56  111.  1.38;  McKinney  v.  Neil,  1  0.  C.  (N.  8.)  101;   s.  c.  9  Jur.   (N.  8.)  339;   11 

.McLean,  .'540;   Stockton  v.  Frey,  4  Gill,  406;  Week.  Rep.  444;  Brehm  v.  Great  Western  R. 

Fairchild  v.  California  Stage  Co.,  13  Cal.  509  ;  Co.,  34  Barb.  256.     Contra,  Withers  v.  North 

Ware  v.  Gay,  11  Pick.  106;  Younge  v.  Kinney,  Kent  R.  Co.,  27  L.  J.  (Exch.)  417  :  «.  c.  at  iiiH 

28  Ga.  Ill :  Rrelnn  v.  Great   Western  R.  Co.,  prius,  sub  nom    Kent  v.  Great  Northern  R. 

34  Barb.  2.56;  Cmtis  v.  Roclie-ter  etc.  R.  Co.,  Co.,  1  Fost.  &  Fin.  I(i5. 
18  N.  Y.  r>34,  ante.  p.  18s :  (.iilcna  etc.  R.  Co.  «  Carpue  v.  London  etc.  R.  Co.,  5  Q.  B.  749, 


212  LIABILITY   OF   THE    CARRIER   FOR   NEGLIGENCE. 


Notes. 


with  another  train/  or  with  an  object  projecting  from  a  car  of  a  train  of  a 
carrier  coming  from  an  opposite  direction  upon  another  track  of  the  defendant,^ 
or  breaking  down ;  ^  or  where  the  boiler  of  a  steam  vessel  explodes ;  *  or  where 
some  unknown  substance  strikes  the  car,  injuring  the  passenger;^  or  where  a 
female  passenger,  standing  up  in  a  Pullman  car,  receives  a  fall  in  consequence  of 
other  cars  being  shunted  against  this  car  in  switching.^  In  all  these  cases,  the 
mere  fact  that  the  accident  happened  under  the  circumstances  named  was  held 
to  create  a  presumption  of  negligence  against  the  cai'rier,  which  he  must  over- 
come by  evidence  on  his  part,  or  suffer  a  judgment  for  damages.  So,  where  the 
accident  was  shown  to  have  happened  from  the  explosion  of  a  lamp  in  an 
omnibus,  it  was  held  that  the  burden  lay  on  the  defendant  to  show  that  the 
burning-fluid,  or  other  material,  used  in  the  lamp  was  a  safe  and  proper  articled 
So,  where  the  plaintiff  proves  that  the  defendant's  coach  in  which  he  was 
riding  was  di^iven  at  a  moderate  rate  of  speed  upon  a  plain  and  good  level  road, 
and  that,  coming  in  contact  with  another  object,  one  of  the  wheels  came  off  and 
the  coach  overturned,  whereby  the  plaintiff  was  hurt,  the  law  would  imply 
negligence  from  these  facts ;  for  it  would  be  a  reasonable  conclusion  from  them 
that  the  stage-coach  was  not  properly  fitted  and  provided.  Then  the  burden 
of  proof  would  change,  and  it  would  be  for  the  defendant  to  rebut  this  legal 
inference. 8 

The  foregoing  rule  refers  to  the  legal  value  of  certain  evidential  facts,  and, 
like  many  other  legal  rules,  it  is  in  danger  of  being  misapplied  unless  its  boun- 
daries are  carefully  ascertained.  We  doubt  if  these  boundaries  have  been  better 
summarized  than  by  Messrs.  Shearman  and  Redfield  in  their  excellent  work  on 
Negligence,  where  they  say  there  must  be  ^^ prima  facie  proof  that  the  proximate 
cause  of  such  injuries  was  a  want  of  something  which,  as  a  general  rule,  the 
carrier  was  bound  to  supply,  or  the  presence  of  something  wliich,  as  a  general 
rule,  the  carrier  was  bound  to  keep  out  of  the  ivay." ' 

It  is  believed  that  three  exceptions  to  it  may  be  stated :  — 

1.  It  does  not  apply  where  the  defect,  deficiency,  or  peculiarity  in  the  carrier's 
means  of  transportation  or  accommodation,  which  was  the  occasion  of  the 
accident,  was  visible,  seen  by,  and  known  to  the  passenger  as  well  as  to  the 
carrier.  This  may  be  well  illustrated  by  a  case  in  Massachusetts,  already  quoted 
in  other  connections.  There,  the  flap  of  a  ferry-boat  was  not  of  the  most  con- 
venient pattern ;  it  did  not  unite  with  the  sui-face  of  the  dock  on  a  level,  but 
made  a  jog.  A  passenger  attempted  to  drive  off  with  his  horses  and  sled.  His 
sled  struck  the  jog,  and  stopped  with  a  sudden  jerk  which  threw  the  load 

per  Lord  Denman,  C.  J.,  at  nisi  prius;  Sulli-  3  Meier  v.  Pennsylvania  R.  Co.,  64  Pa.  St. 

van  V.  Phila.  etc.  R.  Co.,  30  Pa.  St.  234;  Pitts-  225;  Toledo  etc.  R.  Co.  v.  Beggs,  85  111.  80. 

burgh  etc.  R.  Co.  v.  Thompson,  56  III.  133  is.c.  *  Caldwell  v.  New  Jersey  Steamboat  Co., 

4   Ch.  Leg.  X.  9;   Yonge   v.  Kinney,  28  Ga.  47  Y.  Y.  282,293. 

Ill;  Edgerton  v.  New  York  etc.  R.  Co.,  35  =  Holbrook  v.  Utica  etc.  R.  Co.,  16  Barb. 

Barb.  389;  Zemp  v.  Railroad  Co.,  9  Rich.  L.  113  (affirmed  12  N.  Y.  236). 

84;  Dawson  u.  Manchester  etc.  R.  Co.,  7  Hui-1.  ^  Raih-oad  Co.  v.  Pollard,  22  Wall.  341. 

&  N.  1037.     Contra,  Bird  v.  Great  Northern  R.  ?  Wilkie  r.  Bolster,  3  E.  D.  Smith,  327. 

Co.,  28  L.  J.  (Exch.)  3.  8  Ware  v.  Gay,  11  Pick.  106. 

1  Skinner  V.London  etc.  R.  Co.,  5  Exch.  «  Shear.  &Uedf.  on  Neg.,  §280.  This  state- 
786;  s  c.  2  Eng.  Law&  Eq.  360;  15  Jur  299;  ment  of  doctrine  was  cited  with  approval  in 
New  Orleans  etc.  R.  Co.  v.  Allbritton,  38  Miss.  Railroad  Co.  t;.  Mitchell,  11  Heisk.  400,  403. 
242,  274.  See  also  Miller  v.  St.  Louis  R.  Co.,  5  Mo.  App. 

2  Walker  v.  Erie  R.  Co.,  63  Barb.  260.  471. 


GENERAL    DOCTKINES.  213 


Presumption  from  Fact  of  Accident. 


forward  upon  liim  and  injured  him.  Here  it  was  held  that  the  mere  fact  that 
the  accident  happened  under  the  circumstances  stated  did  not  make  out  a  case 
against  the  ferry  company ;  and  the  reasons  for  this  couchision  are  well  set  forth 
in  the  opinion  of  the  court  by  Colt,  J. :  ^  "  The  plaintiff  further  asked  the  court 
to  rule  that,  having  proved  due  care  on  his  part,  and  the  occurrence  of  the  acci- 
dent, the  law  would  imply  negligence  on  the  part  of  the  defendants,  and  cast 
upon  them  the  burden  of  proving  that  the  accident  happened  without  their 
fault.  We  think  such  instruction  would  have  been  erroneous,  as  applied  to 
the  case  presented  upon  the  pleadings  and  evidence.  The  declaration  alleges 
that  the  negligence  of  the  defendants  consisted  in  not  providing  safe  exit  for 
the  plaintiff  with  his  loaded  wagon  from  their  ferry-boat,  so  that  in  attempt- 
ing to  pass  off  the  boat  the  wheels  of  the  wagon  struck  violently  against  the 
drop  of  the  ferry  and  threw  the  load  upon  the  plaintiff,  causing  the  injury  com- 
plained of. 

"  The  general  rule  that  the  plaintiff,  in  actions  of  this  description,  is  bound  to 
prove  negligence  on  the  part  of  the  defendants  as  the  cause  of  the  injury,  has 
been  apparently  modified  in  a  class  of  cases  in  which  it  is  said  that  proof  of  due 
care  on  the  part  of  the  plaintiff,  with  proof  of  the  accident,  is  primdL  facie  evi- 
dence of  negligence  on  the  part  of  the  defendants.  An  examination  of  these 
cases,  we  think,  will  show  that  there  is  in  them  no  real  invasion  of  the  general 
rule  as  to  the  burden  of  proof.  It  will  be  found,  we  believe,  in  all  of  them,  that 
the  nature  of  the  accident  was  such,  or  the  attending  circumstances  such,  that 
proof  of  the  accident  alone  raised  a  presumption  of  negligence,  and  that  the 
same  evidence  which  proved  the  injury  done  also  pi'oved  the  defendants'  negli- 
gence, or  developed  circumstances  from  which  it  must  be  presumed.  Thus, 
in  Carpue  v.  London  and  Brighton  Baihcay,^  where  the  injury  was  caused  by 
a  train  running  off  the  track  and  overturning  the  carriage  in  which  the  plain- 
tiff was  a  passenger,  Denman,  C.  J.,  told  the  jury  that,  'it  having  been  shown 
that  the  exclusive  management  of  the  machinery  and  the  railway  was  in  the 
hands  of  the  defendants,  it  was  presumable  that  the  accident  arose  from  their 
want  of  care,  unless  they  gave  some  explanation  of  the  cause.'  So  in  Stokes  v. 
Saltonstall,^  the  injury  was  occasioned  by  the  overturning  of  a  stage-coach;  and 
in  Ware  v.  Gay  *  the  accident  was  of  a  similar  nature,  occasioned  by  the  running 
off  of  the  wheel  of  the  coach  in  which  the  plaintiff  was  a  passenger.  In  these 
cases  clearly  the  nature  of  the  accident  afforded  proof  of  the  defendants'  negli- 
gence. 

"The  plaintiff,  in  proving  his  injury,  must  ordinarily  prove  the  nature  of  the 
accident  and  the  circumstances;  and  when  such  proof  has  any  tendency  to 
prove  negligence,  and  especially  when  the  defendant  has  exclusively  the  means 
of  knowledge  within  his  control  as  to  what  caused  the  injury,  it  is  said 
the  burden  is  cast  upon  the  defendant  to  explain  the  cause  and  exculpate 
himself. 

"  Upon  recurring  to  the  facts  in  this  case,  it  appears  that  this  accident  njight 
have  happened  witliout  negligence  on  the  part  of  the  defendants,  and  that  the 
means  of  knowledge  as  to  the  cause  of  the  injury  were  equally  within  the  reach 

>  Le  Barron  v.  East  Boston  Ferry  Co.,  11  2  5  Q.  B.  747. 

Allen,  312,  316.  »  13  Pet.  ISl.    ■•  11  Pick.  106. 


214  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 


Notes. 


of  both  parties.  The  court  therefore  rightly  declined  to  give  the  instructions 
asked  for  upon  this  point,  and  for  tlie  reasons  stated ;  the  instructions  which 
were  given  were  sutficientl.y  favorable  to  the  plaintiff." 

2.  It  does  not  apply  where  the  occasion  of  the  hurt  of  the  passenger  was  an 
active  voluntary  movement  on  his  part,  combined  with  some  alleged  deficiency  in 
the  carrier's  means  of  transportation  or  accommodation;  and  the  reason  is  that 
in  such  cases  it  is  necessary  to  consider  wliether  there  may  not  have  been  con- 
tributory negligence  on  the  part  of  a  passenger.  It  is  only  in  respect  of  those 
accidents  which  happen  to  the  passenger  while  he  passivelj'  trusts  himself  to 
the  safety  of  the  carrier's  means  of  transportation,  or  to  the  skill,  diligence, 
and  care  of  his  servants,  that  the  rule  applies.  To  illustrate  this,  let  us  consider 
two  cases  side  by  side.  A  passenger  is  seated  in  a  railway  coach,  and  the  train 
being  in  motion,  the  coach  comes  in  contact  with  some  unknown  substance, 
injuring  the  passenger.  The  happening  of  such  an  accident  is  prima  facie  evi- 
dence of  negligence  on  the  part  of  the  carrier.'  But  where  an  accident  happened 
to  the  passenger  in  consequence  of  his  having  thrust  his  arm  out  of  the  window, 
so  that  it  came  in  contact  with  some  substance  which  the  train  was  passing,  this 
would  not  be  so.^  And  the  same  rule  was  declared  where  the  passenger  fell  ia 
leaving  the  car,  and  passed  under  the  wheels  and  was  killed ;  ^  and  where  the 
passenger,  in  consequence  of  a  voluntary  movement  made  by  him,  had  his  han'i 
caught  in  a  door  and  injured.* 

3.  It  does  not  apply  where  the  plaintiff's  evidence  shows  that  the  accident  was 
caused  by  something  so  wholly  disconnected  with  the  operation  of  the  carrier's 
business  as  not  to  involve  the  safety  or  sutficieucy  of  his  instrumentalities,  or  th« 
negligence  of  his  servants.  This  was  conceded  by  the  court  in  the  case  of  the 
Kansas  Pacific  Railway  Company  v.  Miller,^  and  is  intelligently  stated  and  ex- 
plained by  Seldex,  J.,  in  Curtis  v.  Bochester  and  Syracuse  Bailroad  Company .^ 
The  obvious  correctness  of  this  rule  may  be  seen  from  one  or  two  illustrations 
of  it :  While  a  railway  train  is  in  motion,  a  passenger  is  struck  by  a  gunshot 
fired  from  without;  a  malicious  person  suddenly  places  an  obstruction  upon  a 
railway  track  in  front  of  the  train,  or  misplaces  a  switch  in  the  night,^  wherebj' 
it  is  thrown  from  the  track  and  a  passenger  injured;  a  ship  is  fired  upon  by  a 
piratical  craft  and  sunk,  and  a  passenger  drowned;  a  railway  passenger-train, 
proceeding  with  due  care  upon  a  level  and  safe  track,  is  overthrown  by  the  violence 
of  a  tornado.*  It  is  only  necessary  to  suggest  these  cases  to  enforce  the  conclu- 
sion that  in  the  absence  of  other  evidence,  showing  negligence  on  the  part  of  the 
carrier,  no  presumption  Avould  be  raised  which  would  shift  the  burden  of  proof 
upon  him.  And  the  reason  is  that  the  so-called  presumption  of  negligence  arising 
from  the  mere  happening  of  the  accident  is  not  a  presumption  of  law,  but  a  pre- 
sumption of  fact,  and  it  is  not  the  less  a  presumption  of  fact  because  it  is  drawn  by 
the  judge  from  the  facts  in  proof,  and  not  by  the  jury.  It  is  a  conclusion  to  be 
drawn  from  the  existence  of  certain  evidential  facts,  and  this  conclusion  will  be 

i 

1  Holbrook  v.  Utica  etc.  B.  Co.,  16  Barb.  ^  2  Col.  442,  45S. 

113  (affirmed  12  N.  Y.  236).  6  Ante,  p.  ISS.    See  also  Deyo  v.  New  York 

-  See  the  next  chapter.  etc.  K.  Co.,  34  N.  Y.  9. 

3  Railroad  Co.  v.  Mitchell,  11  Heisk.  400.  •  Latch  v.  Rumuer  R.  Co.,  27  L.  J.  (Exch.) 

■*  Metropolitan  R.  Co.  v.  Jackson,  3  App.  155. 

Cas.  193.  8  McClaryv.  SiouxCityetc.  R.  Co.,3Neb.44. 


IN    RESPECT    OF    VEHICLE    AND    ROADWAY.  215 


Latest  Improvements  —  Latent  Defects. 

drawn  accordingly  as  the  facts  are  or  are  not  sufficient  to  warrant  it.  And  when 
the  question  arises  whether  the  conclusion  is  to  be  drawn  or  not,  it  is  solved  by 
precisely  the  same  principle  which  solves  the  question  under  what  circumstances 
negligence  is  a  question  for  the  judge,  and  under  what  a  question  for  the  jury.' 
In  those  cases,  if  the  facts  in  evidence  are  such  that  no  reasonable  man  could 
draw  from  them  a  conclusion  that  the  defendant  had  been  negligent,  the  judge 
nonsuits  the  plaintiff. 

II.    In   failing   to   provide   a   safe   Vehicle   and   Roadway. 

§  10.  Duty  to  adopt  Latest  Improvements.  —  It  is  obvious  that  so  high  a 
degree  of  care  as  that  which  the  law  exacts  of  the  carrier  of  passengers  is  not 
discharged  unless  the  carrier  adopts,  so  far  as  is  practicable,  the  latest  improve- 
ments in  his  means  of  transportation  which  have  been  found  by  experience  well 
adapted  to  increase  the  safety  of  his  passengers.  If  this  is  true  generally,  it  is 
especially  true  when  he  undertakes  to  carry  passengers  by  the  dangerous  agency 
of  steam.  There  is,  however,  a  limit  to  this  obligation.  "Railroads  must  keep 
pace  with  science  and  art  and  modern  improvements,  in  their  application  to  the 
carriage  of  passengers,  but  are  not  responsible  for  the  unknown  as  well  as  the 
new."  *  It  is  obviously  impossible  to  state  any  rule  as  to  where  the  limit  of  this 
duty  lies;  and  for  this  reason  it  must,  in  general,  be  a  question  of  fact  for  the 
jury.*  A  less  stringent  rule  has  been  adopted  in  Massachusetts.  There,  the  rule 
has  been  laid  down  that  a  carrier  is  not  bound  to  adopt  a  new  and  improved 
method  because  safer  or  better  than  the  methods  already  employed  by  him,  if 
it  is  not  requisite  to  the  reasonable  safety  or  convenience  of  his  passengers,  and 
if  the  expense  is  excessive ;  the  cost  of  such  improved  method  may  be  a  suffi- 
cient reason  for  refusing  to  adopt  it.* 

§  11.  Accidents  from  Latent  Defects  in  Vehicles.  —  If  a  carrier,  in  the  con- 
struction of  a  machine,  in  the  purchase  of  it  where  it  is  constructed  by  another, 
in  the  inspection  of  it  at  the  time  of  its  purchase  and  from  time  to  time  during 
its  use  by  him,  and  finally  in  the  use  of  it,  uses  that  exhaustive  care  which  is 
reasonably  incumbent  upon  him,  considering  the  nature  of  his  business  and  the 
risks  which  it  involves  to  his  passengers,  and,  notwithstanding  such  care,  his 
vehicle  breaks  down  and  his  passengers  are  injured  or  killed,  he  will  not  be 
liable  to  pay  damages  to  them  or  their  personal  representatives.*  It  has  been  held 
that  a  carrier  will  be  liable  if  the  defect  iu  the  vehicle  which  caused  tlie  accident 


1  2  Thomp.  on  Neg.,  p.  1235.  R.  Co.  v.  Thompson,  56  111.  138.    On  the  same 

*  Agnew,  J.,  in  Meier  v.  Pennsylvania  R.  principle,  a  livery-stable  keeper  who  lets 
Co.,  64  Pa.  St.  225,  230.  carriages  for  hire  is  answerable  to  the  hirer 

8  It  was  so  held  in  Hegeman  v.  Western  for  injuries  which  may  happen  by  reason 

R.  Corp.,  ante,  p.  160.  of  defects  in  the  carriage  which  might  have 

*  Le  liarron  v.  East  Boston  Ferry  Co.,  11  been  discovered  by  the  most  careful  and 
Allen,  312.  Comit.'ire  also  the  observations  thorough  examination,  but  not  for  an  injury 
of  Bellows,  J.,  in  Taylor  v.  Railway,  48  N.  H.  which  happens  in  consequence  of  a  hi<lden 
316,  supra,  §  4,  suljsect.  2.  defect,  which  could  not  upon  such  examina- 

*  Stokes  f.  FJastern  Counties  It.  Co.,  2  Fost.  tion  have  been  discovered.  Hadley  v.  Cross, 
&  Fin.  691.    To  the  same  eltect  is  Peorui  etc.  34  Vt.  686. 


216  LIABILITY    OF    THE    CAKRIER    FOR    NEGLIGENCE. 


Notes. 


could  have  beeu  discovered  by  any  test  kiiowu  to  a  mau  skilled  in  the  business  of 
manufacturing  such  vehicles.'  It  is  not  material  that  any  or  all  skilful  manu- 
facturers had,  up  to  the  time  of  the  accident  in  question,  omitted  certain  known 
tests,  the  use  of  which  would  have  prevented  the  accident;  ^  which  is  equivalent 
to  saying  that  ordinary  care  —  that  is,  the  care  employed  by  a  good  and  careful 
man  engaged  in  a  like  business  —  will  not  discharge  the  carrier. 

Where  the  axletree  of  a  coach  broke  on  a  cold  day,  in  consequence  of  which  a 
passenger  was  injured,  and  the  defence  was  that  the  breaking  happened  in  con- 
sequence of  frost,  the  trial  court  declined  to  give  the  following  instructions  at 
the  request  of  the  defendants:  (1.)  "If  the  jury  believe  from  the  evidence  that 
the  cause  of  the  accident  which  occasioned  the  plaintiff 's  injury  was  the  breaking 
of  the  axletree  of  the  defendants'  coach  from  frost,  and  not  from  any  defect 
in  the  axletree,  then  they  should  find  for  the  defendants.  (2.)  If  the  jury 
believe  from  the  evidence  that  the  cause  of  the  accident  which  occasioned  the 
plaintiff's  injury  was  the  breaking  of  the  axletree  of  the  coach  from  frost,  and 
not  from  any  defect  in  the  coach  or  in  the  axletree,  then,  whether  the  coach  was 
old  and  defective  or  not,  they  should  find  for  the  defendants.  (3.)  If  the  jury 
believe  from  the  evidence  that  it  is  equally  as  probable  that  the  axletree  broke 
from  the  effect  of  the  frost  as  from  any  defect  in  the  coach  or  in  the  axletree, 
then  the  jury  should  find  for  the  defendants."  But  the  court,  on  the  part  of  the 
plaintiff,  instructed  the  jury  as  follows:  "If  the  coach  might  have  been  con- 
structed in  a  manner  that  would  have  obviated  all  danger  from  frost,  and  still 
have  been  suitable  for  the  business  of  carrying  passengers,  or  if  the  defendants, 
by  housing  or  taking  the  utmost  care  of  their  coach  when  it  was  not  running, 
could  have  prevented  the  action  of  the  frost,  then,  even  if  the  axletree  did  break 
from  frost,  that  would  not  constitute  a  defence."  These  rulings  were  held 
error,  the  Supreme  Court  saying:  "The  instruction  given  by  the  court  for  the 
plaintiff  was  doubtless  intended  as  a  qualiflcation  of  instructions  given  for  the 
defendants;  but,  in  any  light,  was  calculated  to  mislead  the  jury,  and,  if  held  to 
be  the  law,  would  extend  the  liability  of  common  carriers  of  passengers  to  a 
most  unreasonable  point.  Common  caiTiers  of  passengers  are  not  insurers 
against  all  injury  or  damage.  Although  the  law  requires  the  highest  degree  of 
care  on  the  part  of  the  defendants,  and  holds  them  liable  for  slight  negligence,  it 
does  not  require  of  them  unreasonable  or  impracticable  vigilance.  The  language 
of  the  law  must  be  viewed  in  a  practicable-  and  common-sense  light,  and  so 
applied  in  the  administration  of  justice.  What  is  reasonable  and  practicable 
under  one  condition  of  things,  may  not  be  under  another.  What  in  one  case 
Avould  be  accessible,  and  facilitate  the  convenience  and  safety  of  travel,  in 
another  and  under  different  circumstances  might  be  inaccessible,  and  destructive 
of  the  particular  enterprise.  The  axle  might  have  been  constructed  of  wood,  or 
other  material  than  iron,  and  have  been,  perhaps,  suitable  to  the  business,  which 
Irost  would  not  affect;  and  yet,  upon  the  whole,  not  have  been  as  safe,  or  fit  for 
ihe  particular  use.  The  housing  of  the  coach  might,  from  the  condition  of  the 
country,  have  been  Impracticable.  If  the  same  acts  of  care  and  precaution 
practicable  in  the  most  populous  countries  and  under  the  most  favorable  circum- 


i  Hegeman  ».  Western  R.  Corp.,  ante,  p.  '  Caldwell  v.  New  Jersey  Steamboat  Co., 

l;0.  47  N.  Y.  282 


IN    EESPECT    OF    VEHICLE    AND    ROADWAY.  217 


Latent  Defects. 

stances  were  required  to  fill  the  measiu'e  of  the  law  under  a  condition  of  things 
entirely  different,  existing  in  a  new  country,  the  effect  would  be  to  discourage 
enterprises  of  the  character  in  question,  and  to  lessen  the  facilities  for  public 
travel  of  the  people  of  the  newer  portions  of  our  country.  The  law  is  not 
designed  to  work  such  a  result.  The  true  question  for  inquiry  was :  Would  a 
person  of  extraordinary  prudence  and  caution,  intending  to  afford  the  greatest 
security  to  passengers  and  at  the  same  time  afford  reasonable  facilities  to  travel, 
under  all  the  circumstances  have  acted  differently?  It  is  impossible  by  the  use 
of  language  to  define  negligence  in  fact,  applicable  alike  to  all  circumstances  and 
conditions  of  things ;  and  all  that  can  be  done  in  determining,  in  any  given  case, 
whether  there  is  or  is  not  negligence,  is,  in  view  of  all  the  surrounding  facts, 
the  nature  of  the  means  employed,  and  the  character  of  the  enterprise,  by  the 
exercise  of  the  reason  to  form  a  judgment  as  to  whether  it  does  or  does  not 
exist."  1 

It  is  too  obvious  for  comment  that  where  the  accident  has  happened  from 
the  breaking  of  some  appliance  of  the  carrier,  it  will  be  no  defence  for  him  to 
show  that  the  particular  appliance  which  broke  was  a  sound  one,  of  a  good  kind, 
and  that  it  was  like  the  other  appliances  which  he  had  adopted.  He  is  bound 
to  exercise  the  same  degi'ee  of  care  in  adopting  suitable  instrumentalities  as  in 
seeing  that  each  particular  one  is  free  from  defects.  Thus,  it  is  no  defence  to 
such  an  action,  for  a  stage-coach  proprietor  to  show  that  the  harness  which 
broke  was  a  sound  harness  of  the  style  which  he  used  on  his  line.^ 

But  if  the  appliances  are  amply  sufficient  for  all  the  ordinary  purposes  of 
travel,  the  carrier  will  not  be  responsible  for  every  possible  accident  occurring, 
although  their  construction  might  have  been  improved  so  as  to  have  averted  the 
mishap.  Thus,  the  forward  deck  of  a  steamboat  was  surrounded  by  bulwarks 
three  or  four  feet  high,  with  gangways  upon  each  side,  closed  by  rails  hinged  to 
the  bulwarks  and  of  the  same  height,  and  coming  down  upon  stanchions  in  the 
centre  of  the  gangway,  leaving  the  space  beneath  open.  This  deck  was  not 
designed  for  passengers,  but  they  were  permitted  to  come  upon  it  with  the 
knowledge  of  the  defendant's  employees.  The  plaintiff's  intestate,  a  passenger 
on  the  boat,  came  out  thereon.  His  hat  blew  off,  and  in  springing  to  recover  it, 
he  slipped  under  the  gangway  rail,  fell  overboard,  and  was  drowned.  It  appeared 
that  all  the  boats  upon  the  lake  were  constructed  in  the  samo  manner ;  that  they 
had  been  so  run  for  many  years,  and  there  was  no  proof  tending  to  show  that 
any  one  had  ever  before  gone  overboard  in  this  way,  or  that  such  danger  had 
been  apprehended.  It  was  held  that  the  evidence  failed  to  show  negligence  on 
the  part  of  the  defendant,  and  the  plaintiff  was  properly  nonsuited.* 

The  English  doctrine,  elsewhere  alluded*  to,  that  the  measure  of  duty  of  a 
carrier  of  passengers  is  reasonable  care,  is  illustrated  by  the  case  of  Bichardson 
v.  Great  Eastern  Bailway  Company,^  where  it  appeared  that  in  the  course  of  a 
journey  from  P.  (a  junction  on  the  defendants'  line)  to  London,  a  truck  which 
had  been  received  from  another  road,  laden  with  coal,  broke  down  in  consequence 
of  the  fracture  of  an  axle,  and  caused  a  collision  of  the  freight-train  with  a 


»  Citing  Frink  v.  Potter,  17  111.  406,  412;  »  Dougan  v.  Champlain  Transp.  Co.,56N. 

Beers  v.  Ilousatonic  U.  Co.,  19  Conn.  566.  Y.  1. 

■i  Farish  v.  Reigle,  11  Gratt.  697,  716.  ■•  Sujira,  §  6.  ^  L.  li.  10  C.  P.  486. 


218  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 


Notes. 


passenger-train  in  which  the  phxintiff  was  riding  as  a  passenger,  whereby  the 
plaintiff  was  injured.  The  truck  which  broJte  down  belonged  to  another  com- 
pany, whose  duty  it  was  to  keep  it  in  repair.  The  course  of  business  at  the 
junction  was  that  every  truck,  before  coming  on  to  the  defendants'  line,  under- 
went some  kind  of  an  examination  as  to  its  tituess  for  travel.  This  particular 
truck,  when  submitted  to  such  examination,  was  found  to  have  a  defective 
spring,  and  a  serious  crack  in  one  of  its  main  timbers,  and  it  was  accordingly 
taken  upon  a  siding  and  detained  there  four  or  five  days  for  the  purpose  of 
having  a  new  spring  put  on.  This  was  done  by  the  company  owning  the  truck. 
The  truck  (which  had  not  been  unloaded)  was  then-  sent  on,  with  a  direction 
chalked  on  it  by  a  servant  of  the  company  owning  it  that  it  should  '*  stop  at 
Peterborough  for  repairs  when  empty."  Upon  a  minute  examination  of  the 
truck  after  the  accident,  it  was  found  that  the  fore-axle,  which  was  three  and  a 
half  inches  thick,  had  across  it,  near  the  wheel,  an  old  crack  an  inch  and  a 
quarter  deep,  which  was  admitted  to  have  been  the  sole  cause  of  the  break- 
down. There  was  conflicting  evidence  as  to  whether  or  not,  regard  being  had  to 
the  extent  of  the  traffic  at  the  junction,  it  was  possible  to  have  discovered  this 
defect  in  the  axle  by  any  practicable  examination  at  the  junction,  and  the  follow- 
ing questions  were  submitted  to  the  jury:  1.  Would  the  defect  in  the  axle  which 
was  the  cause  of  the  accident  have  been  discovered  or  discoverable  upon  any 
fit  and  careful  examination  of  it  to  which  it  might  have  been  subjected?  2.  Was 
it  the  duty  of  the  defendants  to  examine  this  axle  by  scraping  off  the  dirt  and 
looking  minutely  at  it,  —  so  minutely  as  to  enable  them  to  see  the  crack  and  so 
to  prevent  or  remedy  the  mischief?  3.  If  that  was  not  their  duty  upon  the  first 
view  of  the  truck,  did  it  become  their  duty  so  to  do  when,  upon  having  dis- 
covered the  defects,  [i.e.,  the  spring,  and  the  crack  in  the  main  timber]  they 
ordered  it  to  be  repaired,  and  it  remained  four  or  five  days  on  their  premises  for 
the  purpose?  The  jury  answered  the  first  question  in  the  affirmative  and  the 
second  in  the  negative;  and  to  the  third  question  they  answered,  "It  was  their 
duty  to  require  from  the  wagon  company  [the  company  owning  the  truck]  some 
distinct  assurance  that  it  had  been  thoroughly  examined  and  repaired."  The 
learned  judge  thought  the  last  answer  immaterial,  and  directed  a  verdict  for  the 
defendants,  reserving  leave  to  the  plaintiff  to  move  to  enter  a  verdict  for  him 
for  an  agreed  sum  if  upon  the  facts  and  findings  of  the  jury  the  court  should  be 
of  opinion  tliat  the  defendants  were  guilty  of  negligence.  Upon  these  findings 
the  plaintiff  was  held  to  be  entitled  to  a  verdict ;  for  although  it  might  not  have 
been  the  duty  of  the  defendants  themselves  to  cause  the  truck  to  be  properly 
examined  and  repaired  upon  its  arrival  at  the  junction,  nevertheless  it  was 
somebody's  duty  to  do  it,  and  the  defendants  were  guilty  of  culpable  negligence 
in  not  satisfying  themselves  that  a  proper  examination  had  taken  place  before 
they  allowed  the  truck  to  proceed. ' 

§  12.  Delects  in  ttie  Carrier's  Roadway.  —  It  is  well  laid  down  that  a  railroad 
company,  being  the  owner  of  its  road  as  well  as  of  its  cai-riages,  is  bound  to  the 
same  degi-ee  of  diligence  and  skill  as  to  the  condition  and  construction  of  its 
road  as  it  is  with  reference  to  the  condition  and  construction  of  its  carriages. 

1  Richardson  v.  Great  Eastern  R.  Co.,  L.  R.  10  C.  P.  486. 


IN    RESPECT    OF    VEHICLE    AND    ROADWAY.  219 


Defects  in  Roadway. 

When,  therefore,  the  road  was  built  on  an  embankment,  and  the  company  had 
taken  no  precautions  by  widening  the  ground  of  the  road,  or  by  erecting  walls, 
to  prevent  trains  which  might  run  off  the  track  from  going  over  the  embank- 
ment, and  such  an  accident  happened,  whereby  a  traveller  was  injured,  it  was 
held  a  case  for  damages. ^ 

So,  if  the  gate  or  crossbar  maintained  at  a  railway-crossing  is  so  constructed 
that,  in  any  event  which  may  reasonably  be  expected  to  occur,  it  is  dangerous  to 
passengers,  the  railway  company  will  be  liable  to  a  passenger  for  any  injury  sus- 
tained by  reason  thereof.  Thus,  it  appeared  that  at  the  intersection  of  a  railway 
track  and  the  highway  the  railway  company  had  placed  a  gate  consisting  of  a 
pole  about  thirty-five  feet  long,  which,  when  trains  were  passing,  was  swTing 
from  one  side  of  the  highway  to  a  post  on  the  other,  as  a  bar  to  travellers  on  the 
highway.  On  such  an  occasion,  a  heavy  runaway  team  came  along  the  highway, 
dashed  against  the  pole  while  in  such  position,  and  broke  or  loosened  it  from  its 
fastening.  The  pole  swung  obliquely  across  the  railroad  track,  and  the  whole  or 
a  part  of  it  was  driven  into  a  car  of  the  passing  train,  which  had  not  slackened 
its  speed.  In  an  action  by  a  passenger  in  tliis  car  for  injuries  received  in  this 
accident,  evidence  of  the  above  facts  was  held  sufficient  to  warrant  a  jury  in  find- 
ing that  the  accident  was  caused  by  the  defendants'  negligence.^ 

But  the  carrier  will  not  be  liable  to  pay  damages  if  such  injuries  happen 
through  latent  defects  in  his  roadway,  bridges,  or  other  permanent  structures, 
where  he  has  bestowed  the  highest  measure  of  care  upon  the  construction,  the 
inspection,  and  the  reparation  of  them.^  In  a  case  where  a  passenger  was 
killed  by  the  giving  way  of  a  railway  embankment  after  an  unusual  storm,  the 
judicial  committee  and  lords  of  the  Privy  Council,  after  animadverting  upon  the 
impracticability  of  laying  down  any  rule  upon  the  subject,  thought  that  the 
railway  company  ought  to  have  constructed  their  works  in  such  a  manner  as  to 
be  capable  of  resisting  all  the  violence  which,  in  the  climate  of  Canada,  where 
the  accident  took  place,  might  have  been  expected,  though  perhaps  rarely,  to 
occur.  In  other  words,  their  conclusion  was  that  a  railway  company  is  bound 
to  construct  their  roadway  so  that  it  will  resist  those  extraordinary  floods  which 
sometimes,  though  not  often,  occur.*  In  this  case  reference  is  made  to  the 
difficulty  of  reconciling  the  case  of  Withers  v.  North  Kent  Bailway  Company,^ 
which  is  cited  as  an  illustration  of  this.  Though  this  latter  case  contains  some 
expressions  which  are  not  law,  the  correct  result  was  no  doubt  reached.  A 
railway  embankment,  consisting  of  sandy  soil,  after  having  stood  for  five  years 
over  a  marshy  ground,  was  washed  away  by  an  extraordinary  storm  of  rain,  and 
a  night  train  ran  off  the  track,  and  the  plaintiff,  a  passenger,  was  injured.  A 
verdict  was  returned  for  the  plaintiff;  the  judgment  upon  which  was  set  aside 
by  the  court  in  banc,  on  the  ground  that  there  was  no  evidence  of  negligence." 
Bramwell,  B.,  declared  that  "  negligence  must  be  shown  by  the  plaintiff,"  and 
that  the  defendants  were  bound  to  know  only  that  which  could  be  known  by 
the  exercise  of  ordinary  care  and  prudence ;  otherwise  they  would  be  insurers 

1  Hanley  v.  Harlem  R.  Co.,  Edm.  Scl.  Gas.  <  Great  Western  R.  Co.  v.  Braid,  1  Moo.  P. 
359.    See  also  supra,  §  4,  subsect.  2.                         C.  O.  (N.  S.)  101;  s.  c.  '•>  Jur.  (N.  S.)  330;   11 

2  Tyrrell  v.  Kastern  R.  Co.,  Ill  Mass.  54G.        Week  Kep.  444;  8  L.  T.  (N.  S.)  31. 

■!■  Hanley  v.  Harlem  11  Co.,  Edm.  Sel.  Cas.  '•  3  Hurl.  &  N.  9fi9;  a.  c.  27  L.  J.  (Exch.) 

359.  417 ;  at  nisi  prius,  1  Fost.  &  Fin.  165. 


220  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 


Notes. 


of  the  safety  of  the  passengers.  All  the  judges  thought  that  the  existence  of 
the  line  for  five  j^ears,  notwithstanding  the  country  was  subject  to  floods,  was 
evidence  that  there  was  no  negligence.  The  observation  of  Baron  Bramwell 
that  it  was  for  the  plaintiff  to  show  negligence,  ignores  the  rule  which  obtains 
In  nearly  all  the  courts  that  the  fact  that  the  accident  happens  through  a  defect 
in  some  appliance  of  the  carrier  is,  unexplained,  evidence  of  negligence. i 

If  there  were  no  rule  exacting  an  extraordinary  degree  of  diligence  of  carriers 
of  passengers,  still  it  would  not  be  error  for  a  judge  to  refuse  to  tell  a  jury  that 
if  the  injury  was  produced  in  part  by  an  unforeseen  cause,  and  in  part  by  a  cause 
attributable  to  negligence,  the  plaintiff  could  not  recover.^  It  has  been  held  no 
error  to  refuse  to  charge  that  the  plaintiff  could  not  recover  unless  there  was 
some  apparent  source  of  danger  to  the  embankment  which  gave  way.*  They  are 
even  answerable  for  the  negligence  of  another  railroad  company  over  whose 
road  they  run  their  cars,  —  as,  where  a  train  is  thrown  from  the  track  by  a 
switch  belonging  to  another  company.* 

The  fact  has  been  developed  by  testimony  in  at  least  one  case  that  good  and 
perfectly  sound  rails  will  break  in  cold  weather  when  the  track  is  in  perfect 
order;  and,  so  far  as  is  known,  there  is  no  way  of  preventing  such  accidents, 
except,  possibly,  to  increase  the  size  of  the  rails  to  dimensions  greater  than  that 
in  common  use.'  Suppose  such  an  accident  has  happened,  and  it  appears  from 
undisputed  evidence  that  the  rail  which  broke  was,  previous  to  the  accident,  a 
sound  rail,  of  the  usual  and  a  good  size,  and  made  of  good,  sound,  and  solid 
iron;  that  the  brakes  were  perfectly  new  and  bright;  that  no  fracture  or  crack 
was  discovered  in  the  pieces  broken  off ;  that  the  end  of  the  rail  made  a  good 
joint,  was  perfect,  not  battered  down,  and  in  good  order;  that  the  chair  was 
good ;  that  the  ties  were  likewise  good,  and  sufficiently  thick  to  support  the  rail ; 
that  there  was  a  sufficient  number  of  them;  that  they  were  sufficiently  close 
together  to  give  a  good  bearing  for  the  rail ;  and  that  the  road  was  well  ballasted 
with  gravel  around  the  ties.  Under  such  evidence,  thei'e  is  no  case  to  go  to  the 
jury,  and  the  judge  ought  to  grant  a  nonsuit.® 

§  13.  Negligence  of  Manufacturer  or  Contractor  imputed  to  Carrier. — 
The  negligence  of  the  manufacturer  of  a  railway  coach  is  to  be  imputed  to 

1  Supra,  §  9.  Byrne  v.  Wilson,  Irish  Rep.  15  C.  L.  332 ;  Hunt 

2  Brehm  v.  Great  Western  R.  Co.,  34  Barb.  v.  Pownal,  9  Vt.  411 ;  Powell  v.  Deveny,  3 
256.  See  also  Palmer  v.  Andover.  2  Cush.  Cush.  300;  Joliet  v.  Verley,  35  111.  58;  Lacon 
600;  Titcomb  v.  Fitchburg  R.  Co.,  12  Allen,  v.  Page,  48  111.  499;  Aurora  v.  Pulfer,  56  111. 
254;  Austin  v.  Xew  Jersey  Steamboat  Co.,  270;  Hull  v.  Kansas  City,  54  Mo.  698;  Ward 
43  N.  Y.  75;  Lords  Baililf-Jurats  of  Romney  v.  North  Haven,  43  Conn.  148;  Baldwin  v. 
Marsh  v.  Trinity  House,  L.  R.  5  Exch.  204  Greenwoods  Turnpike  Co.,  40  Conn.  238. 
(affirmed,  L.  R.  7  Exch.  247) ;  Atchison  v.  Contra,  Wilson  v.  Susquehanna  Turnpike 
liing,  9  Kan.  550;  Clark  t7.  Barrington,  41  N.  Co.,  21  Barb.  68;  Bigelow  «.  Reed,  51  Me.  325 ; 
H.  52;  Kelsey  v.  Glover,  15  Vt.  708;  Lower  Proctor  v.  Jennings,  6  Nev.  83.  Compare 
Macungie  Township  v.  Merkholfer,  71  Pa.  St.  Parker  v.  Union  Woollen  Co.,  42  Conn.  399. 
276;  Hey  v.  Philadelphia,  81  Pa.  St.  44;  Morse  '^  Brehm  v.  Great  Western  R.  Co.,  34  Barb. 
V.  Richmond   41  Vt.  435;  Seigel  v.  Eisen,  41  256. 

Cal.  109;  Tucker  v.  Henniker,  41  N.  H.  317;  <  McElroy  v.  Nashua  etc.  R.  Corp.,  4  Cush. 

Winship  v.  Enfield,  42  N.  H.  197;  Woodward  400. 

V.  Aborn,  35  Jle.  271;  Macauley  v.  New  York,  '■'  See  McPadden  r.  New  York  etc.  R.  Co., 

67  N.  Y.  602;  Thomas  v.  Hook,  4  I'hila.  119;  44  N.  Y.  478. 

Holley  V.  Winooski  Turnpike  Co.,  1  Aik.  74;  °  Ibid,  (reversing  s.  c.  47  Barb.  247). 


IN    RESPECT    OF    VEHICLE    AND    ROADWAY.  221 


Negligence  of  Manufacturer  or  Contractor. 

the  carrier.  It  is  not  sufficient  that  the  carrier  assures  himself  that  the  man- 
ufacturer is  of  good  repute  in  his  business.  If  the  manufacturer  has  failed  to 
apply  a  reasonable  test  which  would  have  ascertained  the  defect,  the  carrier  is 
answerable  for  the  consequences  of  this  negligence,  as  though  it  had  been  his 
own.i  This  doctrine  is  denied  by  the  Supreme  Court  of  Michigan  in  a  late  case, 
but  upon  reasons  which  are  believed  to  be  unsound.'' 

It  follows  that  a  special  plea  by  the  carrier  setting  up  the  following  facts  is  no 
defence :  That  the  accident  complained  of  happened  in  consequence  of  a  fracture 
in  a  crank-pin  of  one  of  the  carriages  in  which  the  plaintiff  was  being  carried  at 
the  time;  "that  the  said  fracture  was  occasioned  by  an  original  defect  in  the 
material  and  construction  of  the  crank-pin,  and  in  the  inside  or  centre  thereof, 
which  said  defect,  before  the  fracture  occurred,  was  not  capable  of  being 
detected  by  the  defendants  upon  due  and  proper  examination  or  observation ; 
that  the  said  crank-pin  was  purchased,  together  with  the  said  locomotive  engine, 
by  the  defendants  in  the  due  course  of  business,  from  competent  manufacturers 
thereof,  and  was  not  made  by  the  defendants ;  and  that  on  the  day  in  the  said 
first  count  mentioned,  and  shortly  before  the  commencement  of  the  said  jour- 
ney, the  defendants  duly  and  properly  examined  the  said  locomotive  engine  and 
crank-pin,  and  had  not,  at  any  time  before  the  said  fracture,  any  notice  of  the 
said  defect  in  the  crank-pin."  The  reason  given  for  this  conclusion  is  that  this 
plea  does  not  contain  any  averment  as  to  the  care  or  skill  applied  to  the  manu- 
facture of  the  engine,  or  as  to  the  care  or  skill  exercised  by  them  in  the  selection 
or  inspection  of  it.  All  the  averments  are  quite  consistent  with  gross  and  culpa- 
ble carelessness  on  the  part  of  the  manufacturers,  and  with  gross  and  culpable 
negligence  on  their  part  in  the  purchase  of  it  from  the  manufacturers.  "If 
they  had  been  themselves  the  manufacturers  of  the  engine,  they  would  have 
been  bound  to  appear  and  prove  that  due  care  and  skill  had  been  exercised  in 
the  process  of  its  manufacture.  Are  they  to  be  relieved  from  legal  liability 
because  they  allege  that  they  have  purchased  it  from  a  competent  manufacturer? 
I  think  that  would  be  a  distinction  daugerous  to  the  public,  and  that,  as  Alder- 
son,  B.,  says,  '  railway  companies  might  buy  ill-constructed  or  unsafe  vehicles 
and  the  public  be  without  remedy.'  "  ^ 

In  like  manner,  where  the  accident  arose  from  the  breaking  of  a  bridge,  the 
fact  that  the  carrier  may  have  engaged  the  services  of  competent  engineers, 
though  a  proper  matter  to  be  considered  on  the  question  of  negligence,  will  not 
exonerate  him  if  the  work  is  deficient;  since  this  is  only  one  element  of  dili- 
gence ;  he  is  still  bound  to  adopt  the  best  methods  and  make  use  of  the  best 
materials.*  He  is  also  under  a  continuing  duty  of  inspection  and  repair.  So 
also,  if  the  railway  company,  whilst  using  its  track  for  the  carriage  of  passengers, 
engages  in  a  work  to  be  done  in  the  immediate  proximity  of  its  track,  negli- 
gence in  the  performance  of  which  would,  in  the  opinion  of  cautious  persons, 
endanger  the  passage  of  its  cars,  and  an  accident  to  a  passenger  is  caused 

1  Hegeman   v.  Western   R.    Corp.,    ante,  ^  Burns  v.  Cork  etc.  R.  Co.,  Irish  Rep.  13 
p.  160;   Caldwell  t;.  New  Jersey  Steamboat  0.  L.  (N.  S.)  543.    Opinion  by  Pigot,  C.  J. 
Co.,  47  N.  Y.  2*2;  Carroll  v.  Staten  Island  R.  *  Grote  v.  Chester  etc.  R.  Co.,  2  Exch.  251; 
Co.,  58  N.  Y.  1-26;  Burns  v.  Cork  etc.  11.  Co.,  ».  c.  5  p:ng.  Rail.  Cas.  649.    To  the  same  effect 
Irish  Rep.  13  C.  L.  (N.  8.)  543.  Is  Brehm  v.  Great  Western  R.  Co.,  34  Barb. 

2  Grand  Kapids  etc.  R.  Co.  v.  Huntley,  38  256. 
Mich.  537. 


222  LIABILITY    OF    THE    CARRIER   FOR    NEGLIGENCE. 


Notes. 


by  an  obstruction  arising  from  negligence  in  the  performance  of  such  work,  the 
company  must  pay  damages :  it  will  be  no  defence  that  the  work  was  placed  in  the 
hands  of  a  contractor,  and  that  the  negligence  which  caused  the  injury  was  that 
of  one  of  his  employees.  Thus,  through  the  negligence  of  the  servants  of  a 
contractor  for  the  doing  of  certain  stone-work  for  a  railway  company,  a  stone 
was  rolled  or  shaken  from  an  embankment,  and  rolled  under  the  wheels  of  a 
passenger-train,  throwing  a  car  from  the  track  and  injuring  a  passenger.  This- 
was  a  case  for  damages. i 

On  the  other  hand,  where  an  accident  has  happened  from  the  breaking  of  some 
portion  of  the  carrier's  vehicle,  —  as,  for  instance,  a  car-wheel,  —  and  there  is  no 
complaint  that  the  train  was  not  driven  in  a  proper  manner  and  by  competent 
persons,  the  cari'ier  will  rebut  the  presumption  of  negligence,  as  shown  in 
another  section,^  arising  from  the  happening  of  the  accident,  by  showing  that 
the  wheel  was  the  work  of  a  skilful  manufacturer,  and  that  it  was  of  the  kind 
usually  employed  in  the  service,  and  had  been  subjected  to  and  withstood  the 
usual  tests.^ 

§  14.  This  Obligation  of  the  Carrier,  how  affected  by  Statute.  —  Compliance 
with  the  requirements  of  a  statute  enacted  to  promote  the  safety  of  passengers 
will  not  of  itself  exonerate  the  carrier,*  although  a  failure  to  comply  with  it 
would  be  what  the  courts  frequently  term  negligence  per  se ;  that  is,  the  injured 
passenger  recovers  damages  without  proof  of  any  other  negligence  than  a 
failure  on  the  part  of  the  carrier  to  comply  with  the  statute. ^  Thus,  a  statute 
requiring  railroad  companies  to  fence  their  tracks  has  been  construed  as  enacted 
for  the  purpose,  in  the  main,  of  protecting  the  lives  of  those  transported  upon 
such  roads.®  Hence,  if  any  animal  gets  on  the  track  in  consequence  of  its 
being  unfenced,  and  a  train  runs  upon  it  and  is  thereby  thrown  from  the  track, 
and  in  the  accident  a  passenger  is  injured,  there  is  a  clear  case  for  recovery  of 
damages  against  the  eompany,  although  those  in  charge  of  the  train  were  guilty 
of  no  personal  negligence  in  running  over  the  animal.' 

In  1838,  Congress  passed  an  act  to  provide  for  the  better  security  of  the  lives 
of  passengers  on  board  of  vessels  propelled  ia  whole  or  lq  part  by  steam.^    This 

1  Virginia  etc.  R.  Co.  v.  Sanger,  15  Gratt.  Notes,  44 ;  Cayzer  v.  Taylor,  10  Gray,  274 ; 
230.  The  case  turned  chiefly  on  the  pro-  Noyes  r.  Smith,  2S  Vt.  59;  Columbus  etc.  R. 
priety  of  the  instructions  to  the  jury.  Co.  v.  Arnold,  31  Ind.  177.    The  rule  of  the 

2  Supra,  §  9.  New  York  Court  of  Appeals,  as  embodied 
8  Toledo  etc.  R.  Co.  v.  Beggs,  85  111.  80.       in   the    case  of   Hegeman   v.   Western   R. 

This  was  the  rule  laid  down  in  Illinois  etc.  Corp.,  ante,  p.  160,  is  more  stringent. 

R.  Co.  V.  Phillips,  49  111.  234,  where  the  action  ^  Caldwell  v.  New  Jersey  Steamboat  Co., 

was  for  injuries  received  by  the  explosion  47  N.  Y.  282;  Brown  v.  New  York  etc.  R.  Co., 

of  a  boiler  of  one  of  the  company's  locomo-  34  N.  Y.  404  (reversing  s.  c.  31  Barb.  3S5). 

tives,  injuring  the  plaintiff,  who  was  a  by-  ^  Blair  v.  Milwaukee  etc.  R.  Co.,  20  Wis. 

stander.    Compare  Losee  v.  Buchanan,  51  N.  254. 

Y.  476;  8.  c.  61  Barb.  86;  1  Thomp.  on  Neg.  «  Corwin  v.  New  York  etc.  R.  Co.,  13  N. 

47;   Marshall  v.  AVellwood,  38  N.  J.  L.  339;  Y.  42,  53,  per  Denio,  J.;  Blair  v.  Milwaukee 

Spencer  v.  Campbell,  9  Watts  &  S.  32;  Witte  etc.  R.  Co.,  supra. 

V.  Hague,  2  Dow.  &  Ry.  33;  Jones  r>.  Yeager,  '  Blair  v.  Milwaukee  etc.  R.  Co.,  supra. 

2  Dill.  64;  Morris  v.  Gleason,  1  Biadw.  510;  8  5  U.  S.  Stats,  at  Large,  304.    Under  this 

AUerton  Packing  Co.  v.  Egau,  86  111.  253;  s.  c.  statute,  an  action  could  be  maintained  either 

18  Alb.  L.  J.  295;  10  Ch.  Leg.  N.  169;  Keegan  where  the  injury  was  to  a  member  of  the 

V.  Western  R.  Corp.,  8  N.  Y.  175 ;  s.  c.  Seld.  crew  of  the  boat  whose  boiler  exploded,  or 


IN    KESPECT    or    VEHICLE    AND    ROADWAY.  223 


Statutory  Liability  —  Steam-Vessels. 

statute  provided  for  the  inspection,  by  officei's  appointed  for  that  purpose,  of 
the  boilers  and  machinery  of  steam-vessels.  It  was  made  the  duty  of  the  owner 
of  such  vessels  to  cause  such  inspections  to  be  made,  and  licenses  were  granted 
only  after  obtaining  the  inspector's  certificate.  This  system  of  governmental 
supervision  of  steam-vessels  was  further  extended,^  until  in  1871  an  elaborate 
statute  was  passed,  covering  in  a  most  careful  manner  the  whole  subject.''  It 
has  been  held  that  this  legislation  was  not  intended  to  limit  the  common-law 
liability  of  ship-owners  as  carriers  of  passengers.  Its  object  was  to  provide 
additional  safeguards.  A  failure  to  comply  with  its  provisions  would  subject 
the  o^vne^s  of  steam-vessels  to  its  penalties,  and  also  to  an  action  for  negligence ; 
but  the  statute  neither  takes  away  any  common-law  liability  nor  any  common- 
law  remedy.^  Therefore,  although  the  owner  of  a  steamboat,  whose  negligence 
has  resulted  in  injury  to  a  passenger,  had  complied  with  all  the  requirements  of 
the  act  in  question,  he  may  still  be  liable  for  negligence.  The  presumption  of 
negligence,  arising  from  the  bursting  of  the  boiler,  did  not  depend  upon  the 
statute,  but  arose  from  the  rule  of  the  common  law  that  where  an  act  takes 
place  which  usually  and  according  to  the  ordinary  course  of  things  would  not 
happen  if  proper  care  were  exercised,  it  is  presumed  that  such  care  was  not 
observed.  The  provisions  of  the  statute  in  this  respect  are  not  in  conflict  with 
the  common  law;  but  if  they  were,  it  is  said  with  obvious  propriety,  that  they 
would  fall  within  the  principle  that  rules  of  evidence  prescribed  by  Congress  are 
not  binding  upon  the  State  courts.*  , 

It  is  a  general  rule  that  whenever  a  statute  imposes  upon  a  person  or  corpora- 
tion a  duty  to  be  performed  for  the  benefit  and  security  of  the  public  distrib- 
utively,  any  person  sustaining  specific  damage  by  a  failure  to  perform  such 
duty,  may  maintain  an  action  therefor.^  This  rule  obviously  holds  good  under 
this  statute ;  but  the  forty-third  section  of  the  statute  gives  an  action  for  a 
failure  to  comply  with  its  provisions,  in  the  following  language :  — 

^^ And  he  it  further  enacted,  That  whenever  damage  is  sustained  by  any  passenger 
or  his  baggage,  from  explosion,  fire,  collision,  or  other  cause,  the  master  and  the 
ovraer  of  such  vessel,  or  either  of  them,  and  the  vessel,  shall  be  liable  to  each 
and  every  person  so  injured,  to  the  full  amount  of  damage,  if  it  happens  through 
any  neglect  or  failure  to  comply  with  the  provisions  of  law  herein  prescribed,  or 
through  known  defects  or  imperfections  of  the  steaming  apparatus  or  of  the  hull; 
and  any  person  sustaining  loss  or  injury  through  the  car[e]lessness,  negligence, 
or  wilful  misconduct  of  any  captain,  mate,  engineer,  or  pilot,  or  his  neglect  or 
refusal  to  obey  the  provisions  of  law  herein  prescribed  as  to  navigating  such 
steamers,  may  sue  such  captain,  mate,  engineer,  or  pilot,  and  recover  damages 
for  any  such  injury  caused  as  aforesaid  by  any  such  captain,  mate,  engineer,  or 
pilot." 

Although  this  statute  nowhere  contains  any  express  prohibition  of  the  use  of 


a  passenger  on  another  boat.    McMahon  v.  *  Caldwell  v.  New  Jersey  Steamboat  Co., 

Uavidson,  13  Minn.  357;  May  v.  Davidson,  IS  47  N.  Y.  282,  292;  Carroll  v.  Staten  Island  R. 

Minn.  523,  537.  Co.,  58  N.  Y.  126,  141. 

1  10  U.  S.  Stats,  at  Large,  61;  Uid.  227.  ■"  Caldwell  v.  New  Jersey  Steamboat  Co., 

2  Act  of  February  28, 1871  (16  U.  S.  Stats,  at  supra. 

Large,  440;   embodied  in  the  Rev.  Stats.,  §§  '■>  For  a  discussion  of  this  principle,  see  ft 

4399-4462.  South.  L.  Rev.  (N.  S.)  29,  31. 


224  LIABILITY    OF    THE    CARRIER   FOR    NEGLIGENCE. 


Notes. 


a  pressure  of  steam  beyond  the  amount  allowed  by  the  inspector's  certificate, 
yet  it  has  been  held  to  contain  such  a  prohibition  by  implication,  and  to  raise  a 
statutory  liability  actionable  under  the  forty-third  section.^ 

III.    Railway   Carriers. 

§  15.  Duties  of  Railway  Companies  in  general.  —  In  most  of  the  foregoing 
cases  the  carriers  sought  to  be  charged  with  liability  were  railway  companies. 
It  will  not  be  possible  to  suggest  any  distinct  particulars  in  which  their  liabilitj- 
differs  from  that  of  other  carriers,  except  that  as  the  means  adopted  by  them 
are  greatly  more  dangerous  to  the  passenger,  the  care  demanded  of  them  must 
correspondingly  increase.  And  this  is  equally  true  under  the  American  rule, 
which  exacts  an  extreme  degree  of  care,^  and  under  the  English  rule,  which 
measures  their  liability  by  the  standard  of  ordinary  or  reasonable  care.*  For 
ordinary  or  reasonable  care  is  a  varying  quantity,  increasing  or  diminishing 
according  to  the  increase  or  diminution  of  the  risks  attending  the  business ;  * 
and  it  has  been  well  said  by  one  eminent  court,  and  often  repeated  by  others, 
that  in  case  of  railway  carriage  by  steam  the  risks  of  human  life  and  limb  are 
so  great  that  any  negligence  may  well  deserve  the  epithet  of  gross.^ 

Such  companies  must  adopt  such  rules  and  regulations  for  the  running  of  their 
trains  as  wiU  insure  safety,  and  after  adopting  them  they  must  conform  to  them, 
or  be  responsible  for  injuries  to  passengers  resulting  from  a  departure  from 
them.®  This  duty  they  owe,  not  only  to  their  passengers,  but  to  their  employees.' 
It  is  also  obvious  that  railway  companies  are  under  an  obligation  not  to  overload 
their  vehicles,  similar  to  that  which  has  been  put  upon  stage  proprietors.*  But 
they  are  under  an  obligation  to  carry  safely  and  comfortably  all  proper  persons 
who  may  apply  to  be  carried,  tendering  the  requisite  fare.'  Great  difficulty  may 
be  experienced  at  times  in  discharging  this  obligation,  especially  during  the 
periods  of  fairs  or  great  public  gatherings.  If  a  railway  coach  breaks  down  in 
consequence  of  being  overloaded,  there  will  be  no  difficult}^,  on  principles  already 
stated,  in  holding  that  the  company  will  be  liable  for  any  injury  which  may 
thereby  happen  to  passengers.  But  if  a  passenger  in  an  overloaded  railway 
coach  is  injured  in  consequence  of  somethiag  not  directly  connected  with  the 
fact  that  the  coach  is  overloaded,  he  will  not  be  entitled  to  recover  damages  of 
the  company  for  their  negligence  in  this  particular.    This  is  very  clear,  as  a 

1  Carroll  v.  Staten  Island  R.  Co.,  58  N.  Y.  *1  Thomp.  on  Neg.,  pp.  46,  23S. 

126,141.    It  must  be  confessed  that  the  ground  s  Grier,  J.,  in  Phila.  etc.  R.  Co.  ».  Derby, 

on  which  this  conclusion  is  based  is  not  made  ante,  p.  31 ;  Str.  New  World  v.  Eing,  ante,  p. 

very  clear  in  the  opinion  of  the  court.    To  175. 

have  held  the  defendant  liable  at  common  '  Chicago  etc.  R.  Co.  v.  George,  19  111.  510. 

law  simply,  and  to  have  applied  the  rule  '  Cooper  v.  Iowa  Central  R.  Co.,  44  Iowa, 

laid  down  in  Parnaby  v.  Lancaster  Canal  134;  Chicago  etc.  R.  Co.  v.  Taylor,  69  111.  461 ; 

Company,  1  Thomp.  on  Neg.  541,  that  al-  Vose  v.  Lancashire  etc.  R.  Co.,  4  Hurl.  &  N. 

though  the  plaintiff  may  have  declared  on  a  728. 

statute,  yet  if  it  could  be  collected  from  the  *  Infra,  §  24. 

allegations  of  his  declaration  that  there  was  ^  Davis  v.  Kansas  etc.  R.  Co.,  53  Mo.  317, 

a  liability  at  common  law,  the  declaration  320;  Bass  v.  Chicago  etc.  R.  Co.,  36  Wis.  450, 

would  be  held  good,  and  the  case  would  go  461;  Thorpe  v.  New  York  etc.  R.  Co.,  13 

to  a  jury.  Hun,  70,  75;  Willis  v.  Long  Island  R.  Co.,  32 

2  Supra,  §  4,  subsect.  2.        '  Supra,  §  6.  Barb.  399  (s.  c.  affirmed  in  34  N.  \.  670). 


RAILWAY    CARRIERS.  225 


Time  for  Passenger  to  get  on  and  off. 


general  statement  of  doctrine ;  but  the  application  which  it  received  in  a  very 
greatly  discussed  case  in  the  House  of  Lords  may,  we  think,  be  doubted.  In 
that  case  it  appeared  that  the  plaintiff  was  a  passenger  by  the  defendants'  rail- 
way. The  carriage  in  which  he  rode  ^as  full.  At  a  certain  station  (Gower 
Street)  three  persons  forced  themselves  in,  and  were  obliged  to  stand.  At  the 
next  station  (Portland  Street)  there  was  a  rush  of  fresh  passengers,  by  whom 
the  door  of  the  carriage  was  opened  from  the  outside,  and  who  endeavored  to 
crowd  their  way  in.  The  plaintiff  voluntarily  rose,  or  partly  rose,  from  his 
seat  to  push  these  persons  back.  The  train  moved;  the  plaintiff,  to  save  him- 
self from  falling,  put  his  hand  upon  the  edge  of  the  door  of  the  carriage ;  at 
that  moment  a  railway  porter  came  up,  pushed  away  the  persons  trying  to  get 
in,  and  slammed  the  door  to,  in  doing  which  the  plaintiff's  thumb  was  caught 
and  crushed.  It  was  held  that  this  evidence  did  not  establish  such  negligence 
on  the  part  of  the  company  as  could  be  said  to  have  occasioned  the  mischief. 
Said  the  Lord  Chancellor  (Lord  Cairns)  :  "  In  the  present  case  there  was  no 
doubt  negligence  in  the  company's  servants,  in  allomng  more  passengers  than 
the  proper  number  to  get  in  at  the  Gower  Street  station;  and  It  may  also  have 
been  negligence,  if  they  saw  these  supernumerary  passengers,  or  if  they  ought  to 
have  seen  them,  at  Portland  Road,  not  to  have  removed  them;  but  there  is 
nothing,  in  my  opinion,  in  this  negligence  which  connects  itself  with  the  acci- 
dent that  took  place."  ^ 

§  16.  Duty  to  afford  a  Reasonable  Time  for  Passengers  to  get  on  and  off 
Trains. — The  passenger  is  entitled  to  have  a  reasonable  time  within  which  to 
board  the  train  after  its  arrival  at  the  station.  Any  movement  of  the  train  which 
is  made  after  it  has  once  come  to  a  full  stop  should  be  preceded  by  ample 
warning  to  all  passengers  who  may  be  in  the  act  of  getting  on.^  Where  a  person 
accompanies  a  passenger  to  the  train,  it  has  been  held  that  he  is  entitled  to  a 
reasonable  time  to  place  his  charge  upon  board,  and  the  neglect  of  the  train-men 
to  give  the  customary  signals  of  departure,  whereby  such  person  is  injured  in 
getting  off  the  train,  amounts  to  negligence  for  which  he  may  hold  the  company 
responsible.^  The  Supreme  Court  of  Missouri,  in  the  case  last  cited,  adopted  a 
rule  contrary  to  the  decision  of  the  Supreme  Judicial  Court  of  Massachusetts  in 
Lucas  v.  Neio  Bedford,  etc.  Bailroad  Company,'^  that  such  a  person  is  not  entitled 
to  special  notice  of  the  departure  of  the  train;  that  the  defendants  may  be 
said  to  have  operated  their  train  with  "  ordinary  care  "  although  no  such  notice 
is  given  such  person  of  the  departure.* 

1  Metropolitan  R.  Co.  v.  Jackson,  3  App.  Is  indeed  proper  that  persons  having  duties 

Cas.  193,  198.  to  perform  incidental  to  tlie  departure  of 

-  Curtis  V.  Detroit  etc.  U.  Co.,  23  Wis.  152;  passengers  should  be  entitled  to  the  same 

8.  c.  27  Wis.  liis.  protection  which  is  the  due  of  every  person 

8  Doss  V.  Missouri  etc.  R.  Co.,  59  Mo.  27.  who  comes  upon  another's  premises  by  invi- 

*  6  Gray,  6+.  tation,  express  or  implied.    This  rule  has 

^  The  conclusion  of   the  Missouri  court  been  expressed  with  clearness  and  accuracy 

may  perhaps  be  questioned.    The  status  of  by  the  present  Chief  Justice  of  the  Massa- 

such  persons  would  seem  to  be  similar  to  chusetts  Court:  "The  owner  or  occupant  of 

that  of  licensees,  who  take  the  license  they  land  is  liable  in  damages  to  those  coming  to 

enjoy  cum  periculo.     Sutton   v.  New  York  it,  using  due  care,  at  his  invitation  or  in- 

etc.  R.  Co.,  GO  N.   Y.  243;  s.  c.  4  Hun,  700;  ducemcnt,  express  or  implied,  on  any  busi- 

Nicholson  V.  Erie  R.  Co.,  41  N.  Y.  525.    It  ness  to  be  transacted  with  or  permitted  by 

15 


220  LIABILITY   OF   THE    CARRIER   FOR   NEGLIGENCE- 


Notes. 


If  the  company  have  been  in  the  habit  of  receiving  and  discharging  passengers- 
at  a  place  other  than  their  regaUir  station,  it  is  not  negligence  for  a  passenger  to 
get  on  at  that  place  while  the  train  is  standing  still  and  there  is  no  apparent 
danger  in  so  doing.  It  is  the  duty  of  the  train-men  to  give  the  customary  sig- 
nals before  starting  away  from  such  a  place. ^  If  the  train  does  not  stop  at  a. 
station,  the  passenger  will  not  be  justified  in  making  an  attempt  to  get  on. 
Thus,  the  plaintiff  having  purchased  his  ticket,  attempted  to  get  upon  tlie  cars 
while  slowly  passing  the  station.  The  platform  and  ^teps  were  so  full  that  he 
could  only  get  upon  the  lower  step.  A  jerk  of  the  cars  threw  him  off,  but  he 
held  on  to  the  iron  rod  and  ran  along  with  the  cars,  endeavoring  to  recover  his 
position  on  the  step  (although  the  speed  of  the  train  was  increasing),  when  he 
was  struck  by  a  platform  near  the  track  and  was  injured.  No  evidence  was 
given  tending  to  prove  facts  explaining  or  justifying  this  negligent  and  reckless 
conduct,  and  a  nonsuit  w^as  held  proper.'''  But  in  cases  where  the  effort  of  the 
passenger  to  board  the  train  does  not  so  plainly  demonstrate  negligence  on  his 
part,  the  question  is  properly  one  for  the  jury.  It  cannot  be  said  that  under  all 
circumstances  an  attempt  to  board  a  train  when  in  motion  will  constitute  negli- 
gence as  a  matter  of  law.^ 

Eailway  companies,  in  order  to  afford  an  opportunity  to  passengers  to  leave 
the  cars  at  their  places  of  destination,  are  bound  to  have  announced  the  names 
of  the  different  stations  upon  the  arrival  of  the  train,  and  then  stop  their  trains 
a  sufficient  length  of  time  to  allow  passengers  to  get  off  without  danger  or 
injury  to  their  persons.'  But  it  would  seem  to  be  negligence  on  the  part  of 
the  servants  of  the  railroad  company  to  announce  a  station  and  then  stop  the 
train  short  of  such  station  in  the  night-time.     When  the  station  is  called,  the 


him,  for  an  injury  occasioned  by  the  unsafe  contrary  principle.    The  plaintiff,  a  licensee, 

condition  of  tlie  laml,  or  of  the  acce-ss  to  it,  having  been  injured  in  the  enjoyment  of  his 

which  is  known  to  him  and  not  to  them,  and  privilege  of  crossing  a  private  bridge,  Keat- 

which  he  has  negligently  suffered  to  exist,  ing,  J.,  said;  "I  am  utterly  unable  to  dis- 

and  has  given  them  no  notice  of."    Carleton  cover  any  duty  which  the  defendants  have 

r.  Franconia  Iron  Co.,  99  Mass.  216,217.    This  contracted  towards  the  persons  whom  the 

rule  was  properly  held  applicable,  in  Tobin  plaintiffs    represent,    or    what    particular 

V.  Portland  etc.  R.  Co.,  59  Me.  183,  to  the  case  breach  of  duty  is  charged." 
of  a  hackman  who  was  injured  by  stepping  '  Keating  v.  New  York  etc.  R.  Co.,  49  N. 

into  a  hole  in  the  platform  of  a  railroad  sta-  Y.  678;  s.  c.  3  Lans.  469.     See  also  Mitchell  v. 

tion.    The  cases  cited  by  the  learned  judge  Western  etc.  R.  Co.,  30  Ga.  22. 
who  delivered  the  opinion  in  Doss  v.  Mis-  -  Phillips  v.  Rensselaer  etc.  R.  Co.,  49  N. 

souri  etc.  R.  Co.  do  not  warrant  the  conclu-  Y.  177.    See  also  Knight  v.  Pontchartrain  R. 

sion  reached  in  that  case.    The  language  Co.,  23  La.  An.  462;  Hubener  v.  Xew  Orleans 

cited  from  Glllis  v.  Pennsylvania  R.  Co.,  59  etc.  R.  Co.,  23  La.  An.  492 ;  Harper  v.  Erie  R. 

I'a.  St.  129;  s.  c    8  Am.  L.  Reg.   (N.  S.)  729,  Co.,  32  N.  J.  L.  88;  Chicago  etc.  R.  Co.  v. 

is  in  its  terms  limited  to  the  case  of  a  person  Scales  (Sup.  Ct.  111.  1879),  9  Cent.  L.  J.  167. 
injured  from  a  defective  condition  of  the  ^  Johnson  tj.  West  Chester  etc.  R.  Co.,  70 

premises.    In  Holmes  v.  North -Eastern  R.  Pa.  St.  357. 

Vo.,  L.   R.  4  Exch.  254;  s.  c.  L.  R.  6  Exch.  <  Southern  R.  Co.  v.  Kendrick,  40  Miss. 

123,  the  injury  arose  from  the  same  cause,  374;  Imhoff  v.  Chicago  etc.  R.  Co.,  20  Wis. 

and  the  express  ground  of  the  decision  was  344;  Keller  v.  New  York  etc.  R.  Co.,  2  Abb. 

that  the  plaintiff  was  not  a  mere  licensee,  App.  Dec.  480;  s.  c.  17  How.  Pr.  102;  Dickens 

but,  being  a  consignee  of   freight,  liad    a  v.  New  York  etc.  R.  Co.,  1  Abb.  App.  Dec. 

right  to  be  where  he  was.    Gautret  v.  Eger-  504;  s.  c.  28  P.arb.  41;  New  Orleans  etc.  R. 

ton,  L.  R.  2  C.  P.  371,  was  evidently  cited  Co.  v.  Statham,  42Miss.  607- 
by  mist.Tke,  as  it  establishes  precisely  the 


RAILWAY    COMPANIES. 


227 


Time  for  Passengers  to  get  on  and  off. 


passengers  have  a  right  to  infer  that  the  first  stop  of  the  train  will  be  at  such 
station.! 

The  implied  contract  to  carry  safely  includes  the  duty  of  giving  the  passengers 
reasonable  opportunity  to  alight  in  safety  from  the  train,  and  a  violation  of  this 
part  of  the  company's  duty  is  culpable  negligence  for  which  an  action  will  lie.^ 
But  although  the  carrier  may  have  been  negligent  in  this  particular,  yet,  in 
general,  the  passenger  will  not  be  justified  in  leaping  from  the  train  after  it 
has  started,  and  in  the  face  of  obvious  danger.^  Circumstances  of  paramount 
necessity  may  exist  which  will  justify  a  person  in  leaping  from  the  train  while 
in  motion,  after  the  cars  have  failed  to  stop  a  reasonable  length  of  time  for  the 
passenger  to  get  off.  Thus,  in  Pennsylvania  Bailroad  Compann  v.  Kilgore,*  the 
plaintiff,  accompanied  by  three  young  children,  on  arriving  at  i.  r  destination 
])roceeded  to  alight;  two  of  the  children  had  done  so,  and  while  the  plaintiff 
was  still  on  the  train,  the  cars  started,  when  she  sprang  upon  the  platform  of 
the  station,  on  which  one  of  the  children  had  fallen  prostrate,  and  was  injured. 
It  was  held  that  her  conduct  was  not  such  negligence  as  would  prevent  her 
recovery  of  damages  for  injuries  thus  sustained.^  If  the  motion  of  the  train 
is  so  slow  that  the  danger  of  jumping  off  would  not  be  apparent  to  a  reason- 
able person,  and  the  passenger  acts  under  the  instructions  of  the  company's 
brakeman  or  conductor  in  so  doing,  and  is  injured,  then  the  injury  cannot  be 
said  to  be  the  result  of  contributory  negligence  on  the  part  of  the  passenger.'' 


1  Central  R.  Co.  v.  Van  Horn,  38  N.  J.  L. 
133.  When  a  railroad  train  has  come  to  a 
fall  stop  for  the  puqiose  of  enabling  pas- 
i-engers  to  alight,  and,  without  notice,  the 
train  is  suddenly  moved,  causing  injury  to 
those  alighting,  it  is  held  immaterial,  upon 
the  question  of  negligence,  whether  such 
motion  is  in  a  backward  or  forward  direc- 
tion. Milliman  v.  New  York  etc.  R.  Co.,  66 
N.  Y.  643;  s.  c.  6  Thomp.  &  C.  585. 

-  Fairmount  etc.  R.  Co.  v.  Stutler,  54  Pa. 
St.  375 ;  Roberts  v.  Johnson,  58  N.  Y.  613 ;  s.  c. 
5  Jones  &  Sp.  157 ;  Houston  etc.  R  Co.  v.  Gor- 
bett,  49  Texas,  573 ;  Mulhado  v.  Brooklyn  etc. 
R.  Co.,  30  N.  Y.  370;  Jeffersonville  etc.  R.  Co. 
V.  Parmalee,  51  Ind.  42.  A  passenger  has  the 
right  to  expect  not  only  that  the  cars  will 
remain  stationary  long  enough  for  h  m  to 
step  from  the  train,  but  also  that  the  ser- 
vants of  the  defendant  will  be  present  to 
assist  him  in  so  doing,  if  necessary.  Jeffer- 
sonville etc.  R.  Co.  V.  Hendricks's  Adminis- 
trator, 26  Ind.  228;  s.  c.  41  Ind.  49.  Contra, 
New  Orleans  etc.  R.  Co.  v.  Statham,  42  Miss. 
607.  But  the  servants  of  a  railroad  company 
cannot  be  expected  to  act  with  reference 
to  a  passenger's  disabilities,  unless  made 
known  to  them.  Toledo  etc.  R.  Co.  v.  Bad- 
deley,  54  111.  19.  If,  however,  being  in- 
formed, they  do  so  act,  the  company  will 
be  responsible  for  their  negligence  in  view 
of  such  knowledge.  Columbus  etc.  R.  Co. 
V.  Powell,  40  Ind.  37.    The  fact  that  a  man  is 


intoxicated  does  not  alone  deprive  him  of 
the  right  to  ride  upon  a  railway  train,  nor 
does  it  free  the  company  from  its  duty  to 
render  him,  as  a  passenger,  due  care.  Milli- 
man i\  New  York  etc.  R.  Co.,  6i  N.  Y.  642; 
s.  c.  6  Thomp.  &  C.  585. 

^  Railroad  Co.  v.  Aspell,  23  Pa.  St.  147; 
Jeffersonville  etc.  R.  Co.  v.  Hendricks's  Ad- 
ministrator, 26  Ind.  228;  Morrison  v.  Erie  R. 
Co.,  56  N.  Y.  302;  Burrows  v.  Erie  R.  Co.,  63 
N.  Y.  556  (reversing  s.  c.  3  Thomp.  &  C.  44) ; 
Daraont  v.  New  Orleans  etc.  R.  Co.,  9  La.  An. 
441;  Dougherty  v.  Chicago  etc.  R.  Co.,  86  111. 
467;  Gavett  v.  Manchester  etc.  R.  Co.  16 
Gray,  501 ;  Lucas  v.  New  Bedford  etc.  R.  Co., 
6  Gray,  64;  Ginnon  v.  New  York  etc.  R.  Co., 
3  Robt.  25.  But,  although  it  may  be  mere 
I'ecklessness  for  a  person  to  jump  fi-om  a 
railroad  train  when  it  is  in  rajtid  motion, 
yet  the  motion  may  be  so  slow  that  it  will  be 
a  question  for  the  jury  wlieiher  it  is  negli- 
gence to  make  a  leap  from  the  train,  taking 
into  consideration  the  physical  condition  of 
the  person  so  doing,  and  all  the  attendant 
circumstances.  Doss  v.  Missouri  etc.  R. 
Co.,  59  Mo.  27,  38;  Illinois  etc.  R.  Co.  v. 
Able,  .59  111.  131. 

^  32  Pa.  St.  292. 

<•  See  also  Loyd  v.  Hannibal  etc.  R.  Co.,  53 
Mo.  509,  a  case  in  which  the  facts  were  iden- 
tical with  those  above  set  out. 

'"'  Georgia  R.  etc.  Co.  v.  McCurdy,  45  Ga. 
288;  Lambeth  v.  North  Carolina  R.  Co.,  66  N. 


228  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 


Notes. 


But  where,  in  such  case,  there  was  a  conflict  of  evidence  as  to  whetlier  the 
person  who  advised  the  passenger  to  jump  from  the  train  was  a  servant  of  the 
company,  a  charge  to  the  effect  that  it  was  immaterial  who  gave  the  direction, 
and  that  it  was  for  the  jury  to  say  whether  it  was  prudent  for  the  passenger, 
acting  under  the  advice  so  given  by  anybody,  to  alight  fi'om  the  train,  was  held 
erroneous.'  So,  where  the  plaintiff  attempted  to  alight  from  the  train  while  in 
motion,  with  the  assistance  of  another  person  not  a  servant  of  the  company,  and 
was  injured,  it  was  held  that  the  result  demonstrated  that  the  injury  arose  from 
the  fact  that  the  train  was  going  at  such  a  speed  that  the  attempt  ought  not 
to  have  been  made,  or  the  accident  was  due  to  the  carelessness  of  the  person 
lending  assistance;  therefore  in  neither  event  could  the  company  be  responsible 
for  the  injury. 2 

§  17.  Trains  overshooting  or  falling  short  of  the  Platform  of  the  Station.  — 
It  is  the  duty  of  servants  of  the  railway  company  to  run  their  trains  so  that  a 
passenger  shall  have  a  reasonably  safe  and  convenient  place  for  alighting.  It 
frequently  happens,  however,  that  from  various  causes  the  passenger-coaches  are 
brought  to  a  stand  at  places  where  there  is  no  platform  or  other  conveniences 
for  alighting,  and  injuries  result  to  passengers  attempting  to  get  off  the  train 
under  these  circumstances. 

It  is  commonly  alleged,  by  way  of  defence,  that  the  passenger  was  under  no 
obligation  to  encounter  danger  in  alighting  at  a  dangerous  place ;  that  he  might 
have  remained  in  the  train,  and  sued  the  company  for  its  breach  of  contract  in 
failing  to  put  him  down  at  his  destination.  This  view  properly  prevails  in  cases 
where  the  passenger,  to  avoid  the  inconvenience  of  baiug  carried  beyond  his  desti- 
nation, leaps  from  a  train  in  rapid  motion,  as  that  is  a  step  which  no  reasonable 
man  would  take  without  expecting  the  consequences  of  failure  to  reach  the 
ground  safely  to  be  visited  upon  himself ;  ^  but  in  cases  of  the  character  under 
discussion  the  danger  of  alighting  is  usually  neither  so  apparent  nor  real,  and,  in 

C.  494;  Lovett  w.  Salem  R.  Co.,  9  Allen,  557;  advice    given.    Hazard  v.  Chicago   etc.   R. 

Filer  V.  New  York  etc.  R.  Co.,  68  N.  Y.  124;  Co.,  1  Biss.  503;  Chicago  etc.  R.  Co.  v.  Ran- 

s.  c.  59  N.  Y.  351;  49  N.  Y.  47;  Pennsylvania  dolph,  53  111.  510.    Information  by  a  conduc- 

R.  Co.  V.  McCloskey's  Administrator,  23  Pa.  tor  of   a    fieight-lrain    to    a    passenger   of 

St.  526;  Wyatt  v.  Citizens'  R.  Co.,  55  Mo.  4S5.  mature  age,  and  accustomed  to  travelling, 

If  the  conductor  or  other  servant  of  a  rail-  that  persons  sometimes  got  off  at  a  partic- 

road  company,  authorized  to  assist  passeu-  ular  place  where  the  train  was  not  stopped 

gers  on  and  off  the  train,  takes  hold  of  a  but  the  speed  slackened,  does  not  require 

passenger  and  assists  him  off  the  train  while  the  passenger  to  leave  the  car  at  such  place, 

in  motion,  the  company  will  be  responsible  and  in  tlie  event  of  injury  to  the  passenger 

for  any  negligence  on  the  part  of  its  ser-  in   altLMnptiiig  to  leave,  the   companj-  will 

vant  in  so  doing.     If   such  servant   is   in-  not  be  re?i)onsible.    Chicago  etc.  R.  Co.  r. 

formed  by  the  passenger  of  any  disability  Hazz.ird,  2o  111.  373.    See  also  Ginnon  t-.  New 

l.y  which  he  is  affected,  it  is  his  duty  to  use  York  etc.  1!.  Co.,  3  Robt.  25. 

.'uch  care  as  the  condition  of  the  passenger  '  Filer  v.  Xcw  York  etc.  R.  Co.,  59  N.  T.  351. 

requires.    Columbus  etc.  R.  Co.  v.  Powell,  2  Burrows  v.  Erie  R.  Co.,  63  N.  Y.  556  (re- 

40  Ind.  37.    The  fact  that  a  passenger,   in  versing  s.  c.  3  Thomp.  &  C.  44). 

.•'lighting  from   the   train  while  in  motion,  ^  Railroad  Co.  v.  Aspell,  23  Pa.   St.   147; 

does  so  under  the  advice  of  the  conductor,  Jeffersonville  etc.  R.  Co.  v.  Hendricks's  Ad- 

aud  receives  injury,  is  not  conclusive  of  the  ministrator,  26  Ind.  228;  Morrison  v.  Erie  R. 

liability  of  the  railway  company.    It   is  a  Co.,  56  N.  Y.  302;  Damont  v.  Xew  Orleans 

proper  question  for  the  jury  whether  a  rca-  etc.  R.  Co.,  9  La.  An.  441 ;  Dougherty  f.  Chi- 

sonabie  man  would  have  acted   upon  the  cago  etc.  R.  Co.,  86  111.  467. 


RAILWAY    COMPANIES.  229 


Invitation  to  alight. 


general,  the  contention  that  the  passenger  alights  at  his  peril  has  not  met  ^vvith 
favor.  The  remarks  of  Brett,  J.,  though  made  in  a  case  not  presenting  the 
circumstances  under  discussion,'  have  gi-eat  force.  He  said:  "It  has  been 
argued  that  no  amount  of  inconvenience,  if  there  be  no  actual  peril,  will  justify  a 
person  incurring  danger  in  an  attempt  to  get  rid  of  it.  I  confess  I  am  not  pre- 
pared to  go  to  that  length.  I  think  if  the  inconvenience  is  so  great  that  it  is 
reasonable  to  get  rid  of  it  by  an  act  not  obviously  dangerous,  and  executed  with- 
out carelessness,  the  person  causing  the  inconvenience  by  his  negligence  would 
be  liable  for  any  injury  that  might  result  from  an  attempt  to  avoid  such  incon- 
venience." 2  And  Chief  Baron  Kelly's  language  in  his  dissenting  opinion  in  Siner 
V.  Great  Western  Railway  Company  ^  is  much  to  the  same  effect,  and  is  probably 
now  recognized  as  a  more  correct  exposition  of  the  law  than  the  views  of  the 
majority  of  the  court  in  that  case.  Said  he :  "I  am  clearly  of  opinion,  however, 
that  a  railway  company  are  not  entitled  to  expose  any  passenger  to  the  necessity 
of  choosing  between  two  alternatives,  neither  of  which  he  could  lawfully  be 
called  on  to  choose,  namely,  either  to  go  on,  or  to  take  his  chance  of  danger  and 
jump  out;  and  if  they  do  so,  the  choice  is  made  at  their  peril.  I  agree  that  if  it 
can  be  clearly  seen  by  the  passenger  that  the  act  must  be  attended  with  injury, 
it  may  then  be  fairly  contended  that  he  is  not  entitled  to  choose  this  obviously 
and  certainly  dangerous  alternative.  *  *  *  Yet  when  he  is  called  upon  to 
choose  between  two  evils  to  which  the  neglect  of  the  company  has  expased  him, 
and  one  of  which  presents  some  degree  of  danger,  but  not  such  as  he  may  not 
without  imprudence  encounter,  if  in  consequence  of  his  adopting  that  alternative 
he  suffers  any  injury,  that  injury  is  the  proper  subject  of  an  action  against  the 
company."  * 

§  18.  Invitation  to  alight,  express  or  implied.  —  In  cases  of  this  kind,  when 
it  can  be  shown  that  the  passenger  received  an  express  invitation  to  alight,  or  an 
intimation  that  no  better  opportunity  would  be  offered,  although  the  carriages 
of  the  train  were  in  an  inconvenient  or  slightly  dangerous  position  for  this  pur- 
pose, the  passenger  is,  in  general,  justified  in  making  the  attempt.  Thus,  in  Foy 
V.  London,  etc.  Bailway  Company,^  a  frequently  cited  case,  the  facts  were  that 
on  the  arrival  of  the  train  at  the  London  terminus  of  the  road,  the  whole  of  the 
train  by  which  the  plaintiff  travelled  was  unable  to  come  up  to  the  platform,  in 
consequence  of  two  trains  standing  ahead  of  it  on  the  track,  and  the  plaintifi 
was  requested  by  a  porter  to  alight  at  a  spot  a  little  below  the  end  of  the  plat- 
form. The  distance  from  the  floor  of  the  carriage  to  the  ground  was  about 
three  feet,  and  there  were  two  steps  leading  down  from  the  carriage.  The  lady 
placed  her  foot  upon  the  first  step,  took  the  hand  of  a  gentleman,  jumped  down, 
and  sustained  a  serious  spinal  injury.    The  jury  having  found  that  the  company 

•  Adams  r.  Lancashire  R.  Co.,  L.  R.  4  C.  waiikee  etc  R.  Co.,  24  Wis.  578,586.  See  also 
p.  739.  NichoUs  v.  Great  Southern  R.  Co.,  Irish  Rep. 

=  L.  R.  4  C.  P.  739.    See  these  remarks  ap-  7  C.  L.  40;  Thompson  v.  Belfast  etc.  R.  Co., 

proved  in  Gee  v.  Metropolitan  R.  Co.,  L.  R.  Iri'h  Rep.  5  C.  L.  517;  Robson  v.  London  etc. 

8  Q.  B.  161,  173;   and  in  Robson  v.  North-  R.  Co.,  L.R.  10  Q.B.  271;  Cockle  v.  London  etc. 

Eastern  R.  Co.,  L.  R.  10  Q.  B.  271.  R.  Co.,  L.  R.  5  C.  P.  457;  Weller  v.  London 

3  L.  R.  3  Exch.  150,  156.  etc.  R.  Co.,  L.  R.  9  C.  P.  136. 

*  This  language  received  the  express  ap-  »  18  C.  B.  (N.  S.)  22);  s.  c.  13  Week.  Itcp. 
proval  of    the   court   in    Delamatyr  v.  Mil-  293;  11  L.  T.  (N.  S.)60li. 


230  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 


Notes. 


were  guilty  of  negligence  in  not  providing  reasonable  means  for  alighting,  and 
that  the  lady  had  not  by  any  misconduct  contributed  to  the  injury,  the  court  held 
that  there  was  evidence  to  warrant  their  finding,  and  refused  to  gi-ant  a  new 
trial  or  an  appeal. 

"What  will  constitute  an  implied  invitation  to  alight  is  a  fruitful  source  of  con- 
troversy. It  is  sometimes  contended  that  the  train-men  calling  out  the  name  of 
a  station,  on  approaching  it,  is  an  invitation  to  alight  as  soon  as  the  train  has 
come  to  a  full  stop.  But  this  cannot  be  true  as  a  proposition  of  law.  Indeed, 
in  some  cases  it  has  been  held  that  this  circumstance  was  not  even  evidence  of  an 
invitation  to  alight.  Said  Blackburn,  J. :  "  Calling  out  the  name  of  the  station, 
I  understand,  and  have  always  understood,  to  mean  this :  that  it  is  an  intimation 
to  all  who  ai'e  ti-avelling  by  the  train  that  the  station  at  which  the  train  is  about 
to  stop  is  that  particular  station.  *  *  *  Calling  out  the  name  of  a  station  is 
not  an  invitation  to  alight." ^  This  same  distinguished  judge,  at  nisi  prim, 
adhered  to  this  opinion  in  the  case  of  Bridges  v.  North  London  Bailway  Company  ^ 
The  facts  of  this  case  were,  that  the  plaintiff 's  husband  was  seated  in  the  last 
carriage  of  a  railway  train.  Before  reaching  the  station  at  which  he  was  to 
alight,  the  train  had  to  pass  through  a  tunnel.  This  tunnel  was  adjacent  to  the 
station,  and  on  this  occasion,  when  the  train  stopped,  the  carriage  in  which  the 
plaintiff's  husband  was  seated  remained  inside  the  tunnel  for  a  considerable 
distance.  There  was  no  platform  in  the  tunnel  opposite  where  this  carriage 
stopped,  but  instead,  an  irregular  heap  of  hard  rubbish.  On  clear  nights  the 
tunnel  was  only  imperfectly  lighted,  and  on  this  night,  being  filled  with  steam,  it 
was  practically  without  light.  The  name  of  the  station  was  called  out  as  the 
train  stopped.  A  passenger  got  out  of  the  next  car  forward  of  that  in  which 
the  plaintiff 's  husband  was  riding,  and  hearing  a  groaning,  went  farther  back 
into  the  tunnel  and  found  him  lying  on  the  rubbish,  having  received  a  broken 
leg  and  other  injuries  in  alighting,  from  the  effects  of  which  he  died.  After 
alighting,  the  witness  heard  the  warning,  "  Keep  your  seats,"  and  shortly  after- 
wards the  train  moved  on.  Mr.  Justice  Blackburx  was  of  opinion  that  there 
was  no  evidence  of  negligence  on  the  part  of  the  defendants,  and  directed  a 
nonsuit;  but  the  jury  expressing  a  strong  opinion  to  the  contrary,  a  verdict  was 
taken  for  the  plaintiff,  and  damages  assessed.  The  nonsuit  was  then  entered, 
but  leave  reserved  to  move  to  enter  the  verdict  for  the  plaintiff  for  the  damages 
assessed.  A  rule  was  accordingly  moved  for,  and,  after  argument  in  the  Queen's 
Bench,  was  refused.^  On  appeal  to  the  Exchequer  Chamber,  the  facts  were  stated 
in  a  "case,"  power  being  reserved  to  the  judges  to  draw  inferences  of  fact. 
The  judgment  of  the  court  below  was  affirmed  by  four  judges  against  three.* 
An  appeal  was  then  taken  to  the  House  of  Lords. ^  The  judges  were  summoned, 
and  opinions  were  delivered  by  five  of  them,  they  being  unanimously  of  the 
opinion  that  there  was  evidence  of  negligence  on  the  part  of  the  defendants  to 
go  to  the  jury.  The  Loi'ds  laid  down  no  rule  as  to  what  might  be  the  conse- 
quence, as  a  positive  rule  of  law,  of  calling  out  the  name  of  the  station  by  the 
company's  servants,  and  concurred  in  the  opinion  of  the  judges  as  to  the  evidence 

1  Lewis  17.  London  etc.  R.  Co.,  L.  R.  9  Q.  L.  R.  7  H.  L.  213;  43  L.  J.  (Q.  B.)  151;  23 
B.  66;  s.  c.  43  L.  J.  (Q.  B.)  S.  Week  Rep.  62;  30  L.  T.  (N.  S.)  S44. 

2  L.  R.  6Q.  B.  377;  s.  c.  40  L.  J.  (Q.  B.)  18S;  ^  l.  R.  5  C.  P.  4o9,  note  (5). 

*  L.  R.  6  Q.  B.  377.         6  L.  R.  7  H.  L.  213. 


KAILWAY    COMPANIES.  231 


Invitation  to  alight. 


■of  negligence  on  the  part  of  the  defendants.  The  judgment  of  the  Court  of 
Exchequer  Chamber  was  therefore  reversed,  and  a  verdict  was  entered  for 
the  plaintiff  for  the  damages  assessed.* 

In  Weller  v.  London,  etc.  Bailway  Company,"^  on  the  approach  of  a  train  to  the 
station,  a  porter  called  out  the  name  of  the  station,  and  the  train  was  brought  to 
a  staud-still.  Hearing  carriage  doors  opening  and  shutting,  and  seeing  a  person 
alight  from  the  next  carriage,  the  plaintiff  (a  season-ticket  holder,  accustomed  to 
stop  there)  stepped  out  of  the  carriage  in  which  he  was  seated,  which  had  over- 
shot the  platform,  and  falling  upon  an  embankment,  was  injured.  It  was  night, 
and  there  was  no  light  near  the  spot,  and  no  caution  was  given,  nor  any  thing 
done  to  intimate  that  the  stoppage  was  a  temporary  one  only,  or  that  the  train 
was  to  be  backed.  Brett,  J.,  said:  ^  "  I  agree  that  to  call  out  the  name  of  the 
station  before  the  train  has  come  to  a  stand-still  is  no  evidence  of  negligence  on 
the  part  of  the  company.  I  also  agree  that  merely  overshooting  the  platform  is 
not  negligence.  But  if  the  porter  has  called  out  the  name  of  the  station,  and 
the  engine-driver  has  overshot  the  station,  and  the  train  has  come  to  a  stand-still, 
the  company's  servants  are  guilty  of  negligence  if  they  do  not  warn  passengers 
not  to  alight.    At  all  events,  the  jury  may  from  the  facts  infer  negligence."  * 

Conduct  other  than  calling  out  the  name  of  the  station  may  be  taken  as  evi- 
dence of  an  invitation  to  alight.  In  Praeger  v.  Bnstol,  etc.  Bailway  Company,^  the 
plaintiff  was  seated  in  the  last  compartment  of  the  last  carriage.  The  train 
arrived  at  a  dimly  lighted  station  on  a  dark  night.  A  guard  opened  the  door,  ami 
said  nothing.  The  platform  did  not  run  alongside  the  track  the  whole  length  of 
the  train,  but  curved  away  from  the  line  at  the  point  where  the  plaintiff's  carriage 
stood.  The  plaintiff  stepped  out,  expecting  to  alight  upon  the  platform,  but  fell 
between  the  carriage  and  the  platform,  and  was  injured.     On  these  facts,  Cock- 

1  Mr.  Baron  Pollock,  in  his  opinion  before  See  Whittaker  v.  Manchester  etc.  R.  Co.,  L. 

the  Lorrts   (at  p.   224),  in  regard    to   what  R.  5  C.  P.  461,  note  (3) ;  Petty  v.  Great  West- 

etfect,  iu  general,  was  to  be  given  to  calliiia:  ern  R.  Co.,  L.  R.  5  C.  P.  461,  note  (1) ;  Scott 

out  the  name  of  a  station,  concurred  iu  the  v.  Dublin  etc.  R.  Co.,  Irish  Rep.  11  C.  L.  (N. 

opinion  of  Mr.  Justice  Willes  in  the  same  S.)  377;  Nicholls  v.  Great  Southern  etc.  R. 

case  in  the  Exchequer  Chamber:    "It  is  an  Co.,  Irisli  Rep.  7  C.  L.  40. 
announcement  by  the  railway  officers  that  -  L.  R.  9  C.  P.  126;  s.  c.  43  L.J.  (C.P.)  137; 

the  train  is  approaching  or  has  arrived  at  22  Week.  Rep.  .302;  29  L.  T   (N.  S.)  888. 
the  platform,  and  that  the  passengers  may  ^  L.  R.  9  C.  P.  132. 

get  out  when  the  train  stops  at  the  platform,  *  To  the  same  effect,  see  Taber  v.  Dela 
or  under  circumstances  induced  and  caused  ware  etc.  R.  Co.,  71  N.  Y.  489;  Central  R.  Co. 
by  the  company,  in  wbich  the  man  reason-  v.  Van  Horn,  38  N.  J.  L.  133;  Columbus  etc. 
;ibly  supposes  he  is  getting  out  at  the  place  R.  Co.  v.  Farrell,  31  Ind  408.  Contra,  Pabst 
where  the  company  intended  him  to  alight."  v.  Baltimore  etc.  R.  Co.,  2  McArthur,  42. 
Mr.  Justice  Denman,  while  laying  down  no  But  this  last  decision  is  based  upon  the  de- 
general  rule  on  the  subject,  considered  that  cision  of  the  Court  of  Exchequer  Chamber 
"  the  jurors  were  entitled  to  consider  that  in  Bridges  v.  London  etc.  11.  Co.  (L.  R.  6  Q. 
fact  as  one  of  importance  in  the  case."  Said  B.  .377),  which  was,  however,  subsequently 
Mr.  Justice  Brett:  "  That  seems  to  me  to  reversed  in  the  House  of  Lords  (L.  R.  7.  H. 
be  a  matter  of  experience  of  life  and  habits,  L.  213),  as  above  stated. 

which  is  solely  for  the  deteimination  of  the  'MS.,   24    L.  T.    (N.   s.)   105.      Stated    at 

jury."  length  in  Cockle  v.  London  etc.  R.  Co.,  L.  R. 

In  other  cases,  it  has  been  held  that  it  Is  a  7  C.  P.,  at  p.  323,  by  Mr.  Justice  Cockbnrn,  for 

question  for  the   jury  whether  (;alling  out  the  reason  that,  although  it  was  an  important 

the  name  of  a  station  .imounts,  under  all  the  case,  it  had  not  found  its  way  into  the  regu- 

circuuistances,  to   an   invitation  to   alight.  lar  series  of  reports. 


232  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 


Notes. 


BURN,  C.  J.,  said:  "He  got  out  on  the  invitation  of  the  guard  who  opened  the 
door,  M'hich  implied  an  invitation  to  alight,  and,  I  think  also,  to  alight  with 
safetj'."  Less  than  this  was  held  to  constitute  an  implied  invitation  to  alight,  in 
Cockle  v.  London,  etc.  Bailway  Company.'^  The  relative  situations  of  the  platform 
and  carriage  were  the  same  as  in  the  previous  case.  The  night  was  very  dark, 
and  although  the  rest  of  the  station  was  well  lighted,  the  place  where  the  last 
carriage  stopped,  in  which  plaintiff  rode,  was  not.  The  train  was  brought  to  a 
final  stand-still,  and  was  not  again  set  in  motion  until  it  renewed  its  onward 
journey.  The  plaintiff  opened  the  cari'iage  door,  and,  stepping  out,  fell  into 
the  space  between  the  carriage  and  the  platform,  and  was  injured.  The  court  of 
Exchequer  Chamber,  overruling  the  decision  of  the  equally  divided  judges  of 
the  Court  of  Common  Pleas  in  this  case,^  held  that  the  bringing  up  of  the  train 
to  a  final  stand-still,  for  the  purpose  of  the  passengers  alighting,  amounted  to  an 
invitation  to  alight;  at  all  events,  after  such  time  had  elapsed  that  the  passenger 
might  reasonably  infer  tliat  it  was  intended  that  he  should  get  out  if  he  pur- 
posed to  alight  at  that  particular  station.* 

Sometimes  the  conduct  of  the  passenger  in  alighting  at  such  a  place  is  so 
manifestly  contrary  to  the  dictates  of  common  prudence  that  his  claim  for  dam- 
ages for  injuries  received  cannot  be  entertained.  Thus,  in  Harrold  v.  Great 
Western  Baihoay  Company,*'  the  carriage  in  which  the  plaintiff  was  riding  was 
carried  beyond  the  station,  and  stopped  upon  an  embankment  above  a  roadway. 
The  night  was  rather  dark,  and  there  was  no  light  in  the  carriage,  and  no 
stationary  light  on  the  platform;  nor  was  there  any  fence  on  the  top  of  the 
embankment,  between  it  and  the  roadway  underneath.  The  plaintiff  was  aware 
that  his  carriage  had  overshot  the  platform,  and,  without  waiting  to  see  whether 
it  would  be  backed  up  to  the  platform,  got  out  of  the  carriage  in  the  dark,  and 
in  so  doing  missed  his  footing  and  fell  forward  over  the  embankment  into  the 
roadway  beneath.  So  in  Lewis  v.  London,  etc.  Bailway  Company,^  the  plaintiff 
saw  that  her  carriage  was  not  alongside  the  platform,  but  at  the  edge  or  comer 
of  it,  and  that  the  engine  and  four  carriages  further  forward  were  beyond  the 
platform.  Being  well  acquainted  with  the  place,  when  the  train  stopped  she 
immediately  arose  from  her  seat  and  prepared  to  get  out  with  the  assistance  of  a 
fellow-passenger.  While  alighting,  the  train  began  to  move  backward  with  a 
violent  jerk,  for  the  purpose  of  bringing  all  the  carriages  alongside  the  platform. 
The  plaintiff  was  thrown  from  the  steps  of  the  carriage  upon  the  end  of  the 
platfonn,  and  injured.  The  court  held  that  from  all  the  circumstances  in  the  case 
the  plaintiff  must  have  believed  that  the  train  which  had  passed  the  platform 
would  come  back  again,  and  that  there  was  no  evidence  from  which  the  jury 
could  have  reasonably  found  negligence  in  the  company's  servants.  Where  a 
railroad  train  is  stopped  at  night  merely  for  the  purpose  of  allowing  another 
train  to  pass,  and  no  notice  is  given  by  servants  of  the  company  that  passengers 
may  leave  the  cars,  they  are  not  entitled  to  do  so ;  and  it  is  no  justification  that  a 

1  L.  R.  7  C.  P.  321 ;  s.  c.  41  L.  J.  (C.  P.)  140.  sion  was  reached.    See  also  Xicholls  v.  Great 

2  L.  R.  5  0.  P.  457 ;  8.  c.  39  L.J.  (C.  P.)  226;  Southern  R.  Co.,  Irish  Rep.  7  C.  L.  40;  Thomp- 
27  L.  T.  (N.  S.)  320;  20  Week.  Hep.  754.  son  v.  Belfast  etc.  R.  Co.,  Irish  Rep.  5  C.  L. 

3  In  the  case  of  Robson  v.  North- Eastern  517. 

R.  Co.,  L.  R.  10  Q.  B.  271,  presenting  sub-  *  14  L.  T.  (N.  s.)  440. 

6tantially  the  same  facts,  the  same  couclu-  ^  L.  R.  9  Q.  B.  06;  s.  c.  43  L.  J.  (Q.  B.)  8. 


RAILWAY    COMPANIES. 


Injuries  to  Passengers  on  the  Track. 


passenger  was  misinformed  by  some  person  not  in  the  emi3lo3meut  of  the  com 
pany  that  he  must  go  and  have  his  baggage  passed  at  a  custom-house,  supposed 
to  have  been  reached  by  the  train,  or  that  the  train  was  near  a  passenger-station 
which  was  not  the  place  of  his  destination.^ 

The  case  of  Siner  v.  Great  Western  Bailway  Company,'^  decided  by  the  Court 
of  Exchequer  Chamber,  affirming  the  decision  of  the  court  below,  is  probably 
more  favorable  to  the  defendant  in  this  class  of  cases  than  any  other  in  the 
reports.  The  circumstances  were  that  an  excursion  train  in  which  the  plain- 
tiffs (husband  and  wife)  were  passengers,  on  account  of  its  length,  overshot 
the  platform  when  it  arrived  at  its  destination.  It  was  then  daylight.  The  pas- 
sengers were  not  warned  to  keep  their  seats,  nor  was  any  offer  made  to  back- 
the  train  to  the  platform,  nor  was  it  in  fact  at  all  so  backed,  nor  did  it  move 
until  it  started  on  its  journey.  After  waiting  a  short  time,  the  husband,  follow- 
ing the  example  of  other  passengers,  alighted  without  any  request  to  the  com- 
pany's servants  to  back  the  train,  or  any  communication  with  them.  The  wife, 
standing  on  the  iron  step  of  the  carriage,  took  both  his  hands  and  jumped  down, 
and  in  so  doing  strained  her  knee.  There  was  a  foot-board  between  the  iron 
step  and  the  ground,  which  she  did  not  use ;  but  there  was  no  evidence  of  any 
carelessness  or  awkwardness  in  the  manner  of  descent,  except  such  as  might  be 
inferred  from  the  above  facts.  It  was  held  by  both  courts  that  there  was  no 
evidence  for  the  jury  of  negligence  in  the  defendants,  and  that  the  accident  was 
entirely  the  result  of  the  plaintiffs'  own  act.^ 

§  19.  Injuries  to  Passengers  on  the  Track.  —  Although  it  is  true,  as  a  general 
rule,  that  a  person  who  goes  upon  a  railroad  track  is  bound  to  know  that  it  is  a 
place  of  danger,  and  to  use  his  eyes  and  ears  constantly  for  his  protection,  the 
neglect  of  which  precaution  is  negligence  per  se,*  yet  this  rule  would  seem  not 
to  apply  where  the  arrangements  of  the  railroad  company  are  such  that  it  is  neces- 
sary for  the  passenger  to  pass  over  tracks  in  order  to  take  and  leave  the  trains. 
In  such  case,  the  raili'oad  company  are  under  a  duty,  by  virtue  of  their  contract  for 
transportation,  to  provide  safe  and  convenient  means  of  entrance  to  and  depart- 
ure from  their  trains.^  Where,  therefore,  there  is  such  a  conflict  in  the  running 
arrangements  of  the  road  that  at  the  same  time  passengers  are  getting  on  or  off 
a  train  at  a  station  where  they  must  cross  over  tracks  in  order  to  do  so,  trains 
are  run  over  these  tracks,  this  circumstance,  especially  where  no  seasonable 
notice  is  given  of  the  approach  of  such  trains,  is  an  act  of  negligeuce  on  the 
part  of  the  company,  and  has  been  justly  repi'obated." 

1  Frost  V.  Grand   Trunk  etc.  R.  Co.,  10  <  Railroad  Co.  r.  Houston,  9.5 U.  S.  697;  s.  c. 

.Mien,  387.  6  Cent.  L.  J.  i;i2 ;  Bancroft  v.  Boston  etc.  R. 

ii  L.  R.  3  Exch.  150;  a.  c.  L.  R.  4  Exch.  117;  Co.,  97  Mass.  275;  Wilcox  v.  Rome  etc.  R. 

37  L.  J.  (Exch.)  98;  17  Week.  Rep.  417.  Co.,  39  N.  Y.  35S;  Ernst  v.  Hudson  etc.  R.  Co., 

3  Similar  cases  subsequently  decided  are  39  N.  Y.  61 ;  Sutton  v.  Delaware  etc.  R.  Co., 

to  the  contrary.    Cockle  v.  London  etc.  R.  66  N.  Y.  243;  Mulherrin  v.  Delaware  etc.  R. 

Co.,  L.  R.  5  C.  P.  457;  Thompson  V.Belfast  Co.,  81   Pa.   St.  3GC;    Illinois   etc.   R.   Co.  v. 

etc.  R.  Co.,  Irish  Rep.  5  C.  L.  517 ;  Robson  v.  Hetherington,  83  III.  510 ;  North  Pennsylvania 

London  etc.  R.  Co.,  L.  R.  10  Q.  B.  271 ;  Nich-  R.  Co.  v.  Heileman,  49  Pa.  St.  60. 
oils  V.  Great  Southern  R.  Co.,  Irish  Rep.  7  C.  ^  Pennsylvania  R.  Co.  v.  Zebe,  33  Pa.  St. 

L.  40;  Welles  v.  London  etc.  R.  Co.,  L.  R.  9  318;  Klein  v.  Jewett,  26  N.  J.  Eq.  474. 
C.  P.  126;  Delamatyr  v.  Chicago  etc.  R.  Co.,  ^  Klein  v.  Jewett,  supra;  Terry  v.  Jewett, 

24  Wis.  578.  20  Alb.  L.  J.  393;  Chiciigo  etc.  R.  Co.  v.  Wil 


2M  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 


Notes. 


§  20.  Degree  of  Care  required  in  Transportation  of  Passengers  on  Freight- 
Trains.  —  When  a  railroad  company  chooses  to  cari-y  passengers  upon  its  freight- 
trains,  the  general  rule  of  responsibility  for  their  safety  is  in  no  degree  relaxed, 
except  that  the  passenger  taking  the  freight-train  accepts  it  and  travels  on  it 
acquiescing  in  the  usual  incidents  and  conduct  of  a  freight-train  managed  by 
prudent  and  competent  raen.^  If  the  passenger  will  be  inconvenienced  more  by 
submitting  to  the  discomforts  and  dangers  incident  to  this  mode  of  travel  than 
by  waiting  for  the  regular  passenger-trains,  he  should  adopt  the  latter  course,  as 
passage  is  granted  upon  these  trains  equally  for  his  accommodation  and  the 
company's  profit. 

The  company  is  held  to  as  strict  an  accountability  for  the  negligence  of  its 
employees  in  the  management  of  a  train  with  a  caboose  attached  in  which  pas- 
sengers are  seated,  as  the  law  imposes  in  the  transportation  of  passengers  on 
trains  specially  provided  for  that  purpose. *  It  cannot,  however,  be  expected 
that  a  company  will  provide  its  freight-trains  with  all  the  conveniences  and 
safeguards  against  danger  which  may  propei-ly  be  demanded  of  it  in  the  con- 
struction and  operation  of  cars  designed  solely  for  the  transportation  of  passen- 
gers, viz.,  air-brakes,  a  bell-cord  connecting  the  engine  with  the  entire  length  of 
the  train,  and  a  brakeman  upon  every  car.^  Such  a  train  is  deficient  in  these 
and  many  other  particulars,  and  properly  so.  Thus,  in  Chicago,  etc.  Bailroad 
Company  v.  Hazard,^  the  plaintiff  came  upon  the  rear  platform  of  the  caboose 
with  the  intention  of  getting  off  the  train  while  it  was  moving  slowly  through 
the  town  where  he  resided,  as  it  was  uncertain  whether  the  train  would  stop 
there.  While  in  this  position,  the  caboose  was  jerked  violently  on  account  of 
the  engineer  increasing  the  speed  of  the  train.  The  plaintiff  was  violently 
thrown  over  the  end  of  the  caboose,  on  account  of  the  lack  of  a  chain  or  bar  in 
the  centre  of  the  rear  platform.  Breese,  J.,  held  that  this  jerking  was  inevitable 
in  the  operation  of  a  freight-train,  and  not  ascribable  to  negligence,  want  of  skill, 
or  improper  management  of  any  agent  or  employee  of  the  defendants ;  and  that 
it  was  not  negligence  that  there  was  no  chain-guard  upon  the  rear  of  the  caboose, 
as  there  was  no  evidence  that  such  an  attachment  was  ever  used  on  a  caboose- 
car.  The  case  was  afterwards  dismissed  in  the  State  court,  and  an  action  com- 
menced in  the  Circuit  Court  of  the  United  States  for  the  Northern  District  of 
Illinois,  in  which  Davis,  J.,  submitted  to  the  jury  the  question  of  the  defendants' 
negligence  in  each  of  the  foregoing  particulars.* 
The  ordinary  rule  that  the  company  must  provide  safe  and  convenient  means 


son,  63  111.  167 ;  Armstrong  v.  New  York  etc.  «  Chicago  etc.  R.  Co.  v.  Hazard,  26  111.  373 ; 

R.  Co.,  66  Barb.  437;  Keller  v.  New  York  etc.  a.  c.  1  Blss.  503;  Ohio  etc.  R.  Co.  v.  Dicker- 

R.  Co.,  24  How.  Pr.  172;  Whalen  v.  St.  Louis  son,  59  lud.  317 ;  Edgerton  v.  New  York  etc. 

etc.  R.  Co.,  60  Mo.  323;  The  State  v.  Grand  R.  Co.  35  Barb.  389;  s.  c.  39  N.  Y.  227;  Ohio 

Trunk  R.  Co.,  58  Me.  176 ;  Dublin  etc.  R.  Co.  etc.  R.  Co.  v.  Muhliiig,  30  111.  9 ;   Ohio   etc. 

i'.  Slattery,  3  App.  Cas.  1155;  s.  c.  Irish  Rep.  R.  Co.  v.  Selby,  47  Ind.  471;  Fliun  v.  PhUa. 

10  C.  L.  256;  Irish  P^ep.  8  C.  L.  531 ;  39  L.  T.  etc.  R.  Co.,  1  Houst.  469. 

(N.  8.)265;  19  Alb.  L.  J.  70.    But  see  Falkiner  »  Hazard  v.  Chicago  etc.  R.  Co.,  supra; 

V.  Gt.  Southern  R.  Co.,  Irish  Rep.  5  C.  L.  213.  Indianapolis  etc.   R    Co.  v.  Horst,  93  U.  S. 

1  Hazard  v.  Chicago  etc.  R.  Co.,  1   Biss.  291,  297;  s.  c    15  Alb.  L.  J.  61;  Indianapolis 

.503;  Indianapolis  etc.  R.  Co.  v.  Horst,  93  U.  etc.  R.  Co.  ?>.  Beaver,  41  Ind.  493. 

S.  291;  Ohio  etc.  R.  Co.  v.  Uickerson,  .59  Ind.  *  Supra. 

31-  ■  1  Biss.  503. 


STAGE    PROPRIETORS.  235 


The  Law  as  laid  down  by  Mr.  Justice  Story. 


of  getting  on  and  off  trains  ^  obviously  has  but  slight  application  to  the  case  of 
u  passenger  travelling  upon  a  freight-train.  The  distinction  is  well  pointed  out 
by  Bell,  J.,  in  Murchw.  Concord  Bailroad  Company:'^  "The  party  who  makes 
an  arrangement  to  be  carried  on  a  baggage-wagon  or  a  freight-car  impliedly 
agrees  to  accept  and  be  satisfied  with  such  accommodations,  as  regards  car- 
riages and  seats,  and  places  of  entering  and  leaving  the  carriages,  as  may  be 
found  in  the  usual  course  of  the  business.  If  the  cars,  at  the  time  of  his  agree- 
ing for  his  passage  and  taking  his  seat,  are  at  a  merchandise-depot,  he  is  to  be 
satisfied  with  such  means  of  entering  the  cars  as  are  provided  for  rolling  in  the 
cask  or  box  on  which  he  is  to  be  contented  to  take  his  seat  if  nothing  better 
offers.  If  the  cars  are  at  the  time  standing  upon  a  part  of  the  track  where  there 
is  no  provision  for  landing  or  receiving  either  goods  or  passengers,  he  is  to  be 
satisfied  with  such  means  and  facilities  as  may  casually  be  within  his  reach. 
The  company,  considered  as  OAvners  of  the  road  or  as  carriers,  are  not,  in  either 
case,  bound  to  make  landings,  or  any  provision  whatever  for  the  reception  or 
discharge  of  passengers  where  none  are  expected  to  be.  The  duties  and  obliga- 
tions of  parties  are  construed  reasonably,  with  reference  to  the  nature  of  their 
business.  We  understand  that  the  freight-trains  upon  these  roads  sometimes 
amount  to  fifty  or  more  cars,  and  extend  in  length  to  two  thousand  feet  or  more, 
and  that  it  depends  upon  what  is,  in  this  respect,  mere  matter  of  accident,  the 
arrangement  of  the  loading,  where  a  place  may  be  found  for  the  casual  passen- 
ger who  may  be  forced  to  adopt  this  way  of  ti-avelling.  It  may  be  at  any  part  of 
the  train,  and  provision  must  be  made,  if  at  all,  for  a  safe  entrance  at  every  part 
of  the  train  and  at  every  part  of  the  road  where  a  passenger  may  desire  to  be  put 
on  board.  A  rule  like  that  must  be  equivalent  to  a  refusal  to  allow  any  passen- 
gers to  be  carried  in  this  mode,  unless  they  are  at  hand  to  take  their  places  at 
the  regular  depots  where  the  trains  are  loaded.  It  would  be  of  mischievous 
consequence  to  adopt  a  rule  which  would  deprive  the  railroad  companies  of  the 
power  to  accommodate  those  whose  occasions  compel  them  to  resort  to  these 
undesirable  modes  of  conveyance."^ 

rv.    Stage   Proprietors. 

§  21.  Duties  of  Stage  Proprietors  —  The  Law  as  laid  down  by  Mr.  Justice 
Story.  —  We  are  indebted  to  Mr.  Justice  Story  for  a  very  clear  and  correct 
exposition  of  the  duties  of  stage  proprietors.  It  will  be  remembered  that  this 
eminent  jurist  was  required,  as  a  justice  of  the  Supreme  Court  of  the  United 
*State!S,  to  hold  a  Circuit  Court  in  each  of  the  New  England  States.  This  was 
before  the  era  of  railroads,  and  he  was  hence  obliged  to  travel  from  circuit  to 
circuit  in  the  only  means  of  overland  conveyance  of  those  days,  —  a  stage-coach 
ilrawn  by  horses.  No  doubt  he  had  personally  a  pointed  experience  of  the 
dangers  to  which  ti-avellers  are  subjected  by  reason  of  stage-owners  employing 
in  their  business  unsafe  or  defective  vehicles  or  tackle,  untrained  horses,  and 
incompetent,  drunken,  or  negligent  drivers.  This  branch  of  jurisprudence, 
which  we  m.ay  here  conveniently  denominate  "stage-coach  law,"  therefore  had 
•A  peculiar  realism  to  his  mind;  and  we  have  no  doubt  that  we  are  indebted  to 

'  Supra,  §  16.  '^  29  N.  H.  9,  42.  Co.,  m  Barb.  .30;  Alleti<ler  v.  Chicago  etc.  R. 

3  Compare  Dillaye   v.  New  York  etc.  R.       Co.,  37  Iowa,  264. 


236  LIABILITY    OF    THE    CARRIER    FOE    NEGLIGENCE. 


Notes. 


this  circumstance  for  the  stringent  rule  of  the  American  courts,  which  puts  upon 
carriers  of  passengers  the  highest  degree  of  care,  skill,  and  foresight  consistent 
with  the  carrying  on  of  their  business.  In  his  admired  work  on  Bailments,  that 
eminent  judge  thus  sums  up  the  duties  of  such  carriers:  ^  — 

"In  the  next  place,  they  are  bound  to  provide  coaches  reasonably  strong  and 
sufficient  for  the  journey,  with  suitable  harness,  trappings,  and  equipments ;  and 
to  make  a  proper  examination  thereof  previous  to  each  journey.^  In  other 
terms,  they  are  bound  to  provide  roadworthy  vehicles,  suitable  for  the  safe 
transportation  of  the  passengers.  If  they  fail  in  any  of  these  particulars,  and 
any  damage  or  injury  occurs  to  the  passengers,  they  will*  be  responsible  to  the 
full  extent  thereof.^  Hence  it  has  been  held  that  if  there  is  any  defect  in  the 
original  construction  of  a  stage-coach,  —  as,  for  example,  in  an  axletree,  — 
although  the  defect  be  out  of  sight,  and  not  discoverable  upon  a  mere  ordinary 
examination,  yet  if  the  defect  might  be  discovered  by  a  more  minute  examina- 
tion, and  any  damage  is  occasioned  to  a  passenger  thereby,  the  coach  proprietors 
are  answerable  therefor.*  The  same  rule  will  apply  to  any  other  latent  defect 
which  might  be  discovered  by  more  minute  examination  and  more  exact  dili- 
gence, whereby  the  work  is  not  roadworthy,  and  a  damage  thereby  occurs  to 
any  passenger.  In  this  respect  there  does  not  seem  to  be  any  difference  between 
the  case  of  a  coach  which  is  not  roadworthy  and  of  a  ship  which  is  not  seaworthy, 
as  to  the  implied  obligations  of  the  owner. ^ 

"  In  the  next  place,  they  are  bound  to  provide  careful  drivers,  of  reasonable 
skill  and  good  habits,  for  the  journey,  and  to  employ  horses  which  are  steady,  and 
not  vicious,  or  likely  to  endanger  the  safety  of  the  passenger.^  In  the  pithy  lan- 
guage of  an  eminent  judge,  it  may  be  said  that  'the  coachman  must  have 
competent  skill;  he  must  be  well  acquainted  with  the  road  he  undertakes  to 
drive ;  he  must  be  provided  with  steady  horses,  a  coach  and  harness  of  suffi- 
cient strength  and  properly  made,  and  also  with  lights  by  night.  If  there  is  the 
least  failure  in  any  of  those  things,  the  duty  of  the  coach  proprietors  is  not  ful- 
filled, and  they  are  responsible  for  any  injury  or  damage  that  happens.' ' 

"In  the  next  place,  they  are  bound  not  to  overload  the  coach,  either  with  pas- 
sengers or  with  luggage ;  and  they  are  to  take  care  that  the  weight  is  suitably 
adjusted,  so  that  the  coach  is  not  top-heavy  and  made  liable  to  overset.^ 

1  Story  on  Bail.  (4th  ed.),  §§  592-594,  598,  80;  Camden  etc.  R.  Co.  v.  Burke,  13  Wend. 
600-602.  611,  627;  Hollister  v.  Nowlen,  19  Wend.  234; 

2  Citing  Bremner  v.  Williams,  1  Car.  &  P.       Cole  v.  Goodwin,  19  Wend.  251. 

414;  Crofts  v.Waterhouse,  3  Bing.  321;  Jones  "^  Citing  Waland  v.  Elkins,  1  Stark.  272; 

r.  Boyce,  1  Stark.  493;  Christie  v.  Griggs,  2  Christie  v.   Griggs,  2  Camp.  79;    Harris  v. 

Camp.  80;  1  Bell's  Comra.  (5th  ed.)  462;  Sharp  Costar,  1  Car.  &   P.  636;   Crofts  v.  Water- 

V.  Grey,  9  Bing.  457 ;  Camden  etc.  R.  Co.  v.  house,  3  Bing.  321 ;  Stokes  v.  Saltonstall,  13 

Burke,  13  Wend.  611,  627,  628.  Pet.  181 ;  Hall  v.  Connecticut  Steamboat  Co., 

3  Citing  Aston  v.  Heaven,  2  Esp.  533;  1  13  Conn.  319. 

Bell's Comm.  (5th  ed.)  462,463;  Sharps.  Grey,  '  Per  Best,  C.  J.,  in  Crolts  v.  Waterhousc, 

9  Bing.  457;  Camden  etc.  R.  Co.  r.  Burke,  13  3  Bing.  314,  321;  1   Bell's  Comm.  (5th   ed.) 

Wend.  611,  627,  628.  462. 

*  Citing  Sharp  v.  Grey,  9  Bing.  457;  Chris-  «  Citing  Long  v.  Home,  1  Car.  &  P.  612; 

tie  V.  Griggs,  2  Camp.  80.  Israel  r.  Clarke.  4  Esp.  259;  Aston  v.  Heav- 

s  Citing  Sharp  v.  Grey,  9  Bing.  457;  Dig.,  en,  2  Esp.  533;  Heard  r.  Mountain,  5  Petersd. 

Lib.  19,  tit.  2, 1.  19,  §  1;  Pothier's  Pand.,  Lib.  Abr..  tit.  "  Carriers,"  54;  1  Bell's  Comm.  (5th 


19,  tit.  2,  note  63;  Christie  v.  Griggs,  2  Camp.       ed.)  462. 


STAGE    PROPRIETORS.  237 


The  Law  as  laid  down  by  Mr.  Justice  Story. 


"Tliey  are  bound  to  make  use  of  all  the  ordinary  precautions  for  the  safety  of 
passengers  on  the  road.'  This  involves  a  consideration  of  the  duties  of  the 
coachman  in  driving  on  the  road.  If  he  is  guilty  of  any  rashness,  negligence,  or 
misconduct,  or  if  he  is  unskilful,  or  deviates  from  the  acknowledged  custom  of 
the  road,  the  proprietors  will  be  responsible  for  any  injury  resulting  from  h  s 
acts.'^  Thus,  if  the  coachman  drives  with  reins  so  loose  that  he  cannot  govern 
his  horses,  the  proprietors  of  the  coach  will  be  answerable .^  So,  if  there  is  dan- 
ger in  any  part  of  the  road,  or  in  a  particular  passage,  and  he  omits  to  give  due 
warning  to  the  passengers.*  So,  if  he  takes  the  wrong  side  of  the  road,  and  an 
accident  happens  from  want  of  proper  room.*  So,  if  by  any  incaution  he  comes 
in  collision  with  another  carriage.*  So,  if  any  accident  happens  from  his  racing 
against  other  coaches ;  or  from  his  driving  so  rapidly  over  the  common  road  as 
amounts  to  rashness ;  or,  a  fortiori,  from  his  driving  immoderately  over  a  dark 
and  dangerous  road;  or  from  his  taking  too  many  passengers  for  the  size  and 
strength  of  his  coach.''  In  short,  he  must  in  all  cases  exercise  a  sound  and  rea- 
sonable discretion,  in  travelling  on  the  road,  to  avoid  dangers  and  difficulties ; 
and  if  he  omits  it,  his  principals  are  liable.*  The  liability  of  the  coach  proprie- 
tors will  be  the  same,  although  the  injury  to  the  passenger  is  caused  by  his  own 
act,  —  as,  by  leaping  from  the  coach,  — if  there  is  real  danger,  and  it  arises  from 
the  want  of  due  skill  or  from  the  careless  conduct  of  the  coachman.*  And  it  will 
not  make  any  difference  in  the  case,  that,  by  such  attempt  to  escape,  the  passen- 
ger has  increased  the  peril,  or  even  occasioned  the  coach  to  upset,  and  has 
thereby  caused  the  Injury  to  himself,  if  the  want  of  proper  skill  or  care  in  the 
coachman  has  placed  the  passengei'S  in  a  state  of  peril,  and  there  was  reasonable 
ground  for  supposing  that  the  coach  would  thereby  be  upset.'" 

"  In  all  cases,  the  coach  proprietors  are  bound  to  carry  the  passengers  to  the 
end  of  the  journey,  and  to  put  them  down  at  the  usual  place  of  stopping;  and 
if  that  is  an  inn-yard,  it  is  not  sufficient  to  put  them  down  on  the  outside  of 
the  gateway  of  the  inn."  If  they  agree  to  take  a  passenger  to  a  particular  place, 
this  also  becomes  obligatory  on  them.'^  If  the  custom  of  the  coach  is  to  carry 
the  passengers  to  their  own  houses  or  lodgings  in  a  particular  place,  that  must 
be  conformed  to. 

"Next,  as  to  the  liability  of  passenger-carriers.  This  naturally  flows  from 
their  duties.  As  they  are  not,  like  common  carriers  of  goods,  insurers  against 
all  injuries  except  by  the  act  of  God  or  by  public  enemies,  the  inquiry  is  natu- 

'  Citing  1  Bell's  Comm.  (5th  ed.)  462.  and    notes;   Israel   v.  Clarke,  4   Esp.   259; 

2  Citing  Stokes  v.  Saltonstall,  13  Pet.  181;        Stokes  v.  Saltonstall,  13  Pet.  181. 

3  Kent's  Conim.  (4th  ed.)  601,  602;  Hall  v.  "  Citing  Jackson  v.  Tollctt,  2  Stark.  3"; 

Connecticut  Meuniboal  Co.,  13  Conn.  319.  Stokes  v.  Saltonstall,  13  Pet.  181,  192,  193;  2 

3  Citing  Aston?;.  Heaven, 2Ef'l).53:5;  Stokes  Kent's  Comm.  (4th  ed.)  GOl,  602;  1  Bell's 
».  Saltonstall,  13  Pet.  181,  191, 192.  Comm.   (5th  ed.)  4G2;    Hall  V.Connecticut 

<  Citing  Dudley  v.  Smith,  1  Camp.  167;  1  Steamboat  Co.,  13  Conn.  319. 

Bell's  (;omm.  (.Jih  ed  )  463  and  notes.  "  Citing  Jones    v.    Boyce,    1    Stark.    493; 

5  Citing  Wordsworth  u.VVillan,  5  Esp.  273;  Crofts  r.  Waterhouse,  3  Ring.   321;    Stokes 

Waland  v.  Elkins,  1  Stark.  272.  v.  Saltonstall,  13  Pet.  181,  191. 

<'•  Citing  Maybew  v.  Bojxe,  1  Stark.  423;  "*  Citing  Stokes  v.  Saltonstall,  13  Pet.  181, 

Dudley   v.    Smith,    1    Camp.    167;    1    Bell's  191,192. 

Comm.  (5th  ed.)  462  and  note.  "  Citing  Dudley  v.  Smith,  1  Camp.  167. 

7  Citing  1  Bell's  Comm.  (5th  ed.)  462,  4G3,  '-  Citing  Ker  v.  Mountain,  1  Esp.  27. 


238  LIABILITY    OF    THE    CARUIER    FOR   NEGLIGENCE. 


Notes. 


rally  presented,  what  is  the  nature  and  extent  of  their  responsibility?  ^  It  is 
certain  that  this  undertaking  is  not  an  undertaking  absolutely  to  convey  safely. 
But  although  they  do  not  warrant  the  safety  of  the  passengers  at  all  events,  yet 
their  undertaking  and  liability  go  to  this  extent,  that  they  and  their  agents  possess 
competent  skill,  and  that  they  will  use  all  due  care  and  diligence  in  the  perform- 
ance of  their  duty.^  But  in  what  manner  are  we  to  measure  this  due  care  and 
diligence?  Is  it  ordinary  care  and  diligence,  which  will  make  them  liable  only  for 
ordinary  neglect?  Or  is  it  extraordinary  care  and  diligence,  which  will  render 
them  liable  for  slight  neglect?  As  they  undertake  for  the  carriage  of  human 
beings,  whose  lives  and  limbs  and  health  are  of  great  importance  as  well  to  the 
public  as  to  themselves,  the  ordinary  principle  in  criminal  cases,  where  persons 
are  made  liable  for  personal  wrongs  and  injuries  arising  from  slight  neglect, 
would  seem  to  furnish  the  true  analogy  and  rule.  It  has  been  accordingly  held 
that  passenger-carriers  bind  themselves  to  carry  safely  those  whom  they  take 
into  their  coaches,  as  far  as  human  care  and  foresight  will  go,  —  that  is,  for  the 
utmost  care  and  diligence  of  very  cautious  persons;  and  of  course  they  are 
responsible  for  any,  even  the  slightest,  neglect.^ 

"  But  passenger-carriers,  not  being  insurers,  are  not  responsible  for  accidents 
where  all  reasonable  skill  and  diligence  have  been  employed.  When  every  thing- 
has  been  done  which  human  prudence,  care,  and  foresight  can  suggest,  accidents 
may  happen.  The  lights  may  in  a  dark  night  be  obscured  by  fog;  the  horses 
may  be  frightened ;  the  coachman  may  be  deceived  by  the  sudden  alteration  of 
objects  on  the  road ;  the  coach  may  be  upset  accidentally  by  striking  another 
vehicle  or  by  meeting  with  an  unexpected  obstruction;  or  from  the  intense 
severity  of  the  cold,  the  coachman,  although  possessed  of  all  proper  skill,  and 
taking  all  due  and  reasonable  care,  may  at  the  time  become  physically  incapable 
of  managing  his  horses  or  of  otherwise  doing  his  duty.*  In  all  these  and  the 
like  cases,  if  there  is  no  negligence  whatsoever,  the  coach  proprietors  are 
exonerated."  * 

The  language  employed  in  these  sections  is  traceable  in  many  subsequent 
judicial  opinions, ^  and  in  two  cases  they  have  been  quoted  at  length  as  embody- 
ing the  law  on  the  subject.' 

§  22.  Duty  to  furnish  Competent  Drivers.  —  If,  with  this  measure  of  duty 
imposed  upon  him  by  law,  a  driver  gets  sick  so  as  to  be  unable  to  proceed  on  a 
journey,  an  exigency  has  arrived  which  it  was  the  duty  of  the  proprietor  to 

1  Citing  Stokes  v.  Saltonstall,  13  Pet.  181,  livered    by   Mr.  Justice    Barbour,   will    be 

191;  Sharp  v.  Grey,  9  Bing.  457.  found  to  embrace  and  to  exhaust  the  learn - 

-  Citing  Harris  v.  Costar,  1  Car.  &  P.  636;  ing  applicable  to  it.    See  also  Camden  etc. 

Crofts  V.  Watcrhouse,  3  Bing.  321 ;  Stokes  v.  R.  Co.  v.  Burke,  13  Wend.  611,  627,  628. 

Saltonstall,  13  Pet.  181,  191.  t  Citing  Stokes  v.  Saltonstall,  13  Pet.  181,^ 

*  Citing  Aston    v.    Heaven,    2    Esp.    533;  191-193. 

Christie   v.   Griggs,  2  Cani,>.   79;    White    v.  ^  Citing  Crofts  ?;.  Watcrhouse,  3  Bing.  319, 

Boulton,  Peake,  113;  1  Bell's  Comm.  (5th  ed.)  321;  Christie  v.  Griggs,  2  Camp.  79;  Aston  v. 

562;    Stokes  v.  Saltonstall,  13  Pet.  181,  191-  Heaven,  2  Esp.  533. 

193.     This   whole  subject    was    thoroughly  «  Maury  r.  Talmadge,  2  McLean,  157;  Peck 

examined    by   the   Supreme  Court    of    the  v.  Neil,  3  McLean,  22. 

United  States,  in  the  case  of  Stokes  u.  Sal-  '  Farish  v.  Reigle,  11  Gratt.  697,  707;  Fair- 

tonstall;  and  the  opinion  of  the  court,  de-  child  v.  California  Stage  Co.,  13  Cal.  599. 


STAGE    rROPKIETORS.  23i> 


Duty  to  furnish  Competent  Driver. 


foresee  and  provide  for.  He  is  bound  to  liave  another  competent  driver  ready 
to  take  the  place  of  the  one  who  is  sick;  and  if  the  stage  is  intrusted  to  an 
incompetent  person,  either  by  himself,  his  local  agent,  or  by  the  driver  who  has 
been  taken  sick,  and  in  consequence  of  th§  incompetency  of  this  person  the 
stage  is  overturned  and  a  passenger  injured,  he  will  be  liable  in  damages.  It 
was  so  held  in  a  case  in  Illinois,^  the  facts  of  which,  and  the  law  arising  upon 
them,  are  well  blended  together  in  the  following  paragraph  in  the  opinion  of  the 
court,  delivered  by  Walker,  J. :  "  It  is  likewise  insisted  that  as  Ward,  who 
was  also  •  a  passenger,  was  at  the  time  the  accident  occurred  acting  as  the 
driver,  the  proprietors  are  therefore  not  responsible  for  the  injury  sustained  by 
defendant  in  error.  It  was  the  duty  of  the  proprietors  of  the  stage  line  to 
furnish  competent  and  careful  drivers,  and  any  neglect  of  that  duty  must  render 
them  liable  for  injuries  sustained  by  passengers  by  reason  of  its  omission. 
When  Ward  was  permitted  to  drive  the  coach,  to  relieve  the  regularly  employed 
driver  that  hacl  been  put  in  charge  of  the  coach,  he  for  the  time  being  became 
their  driver ;  and  whether  he  undertook  to  drive  at  the  request  of  the  proprietors, 
their  agents,  or  of  the  regular  driver  on  the  line,  can  make  no  difference.  The 
driver  was  unwell  when  he  left  his  station,  and  should  have  been  relieved  by  the 
substitution  of  another  competent  driver  able  to  perform  the  duty.  The  pro- 
prietors, by  themselves  or  their  agents,  have  control  of  the  horses  and  coaches, 
and  when  any  one  else  is  permitted  to  assume  their  control,  such  person  is,  for 
all  purposes  of  a  driver,  their  agent ;  and  if  incompetent,  unskilful,  or  careless, 
and  injury  results,  the  proprietors  are  liable  for  the  damages  to  the  same  extent 
as  if  he  were  their  regularly  employed  driver.  They  must  also  furnish  drivers 
who  are  familiar  with  the  road  over  which  they  have  to  pass,  so  that  they  may 
avoid  the  changes  incident  to  its  travel.  In  this  case  it  is  apparent  that  if  Ward 
had  known  the  road,  the  accident  would  not  have  occurred.  The  evidence  shows 
that  instead  of  passing  upon  the  centre  of  the  road  at  the  place  where  the  acci- 
tlent  occurred,  that  the  drivers  on  this  line  had  been  in  the  habit  of  travelling 
along  and  in  the  ditch  at  the  side  of  the  road.  The  horses  being  accustomed  to 
that  side  of  the  road,  were  constantly  making  effc^rts  to  get  into  it,  while  Ward 
was  endeavoring  to  keep  them  in  the  centre  of  the  road.  It  was  this  effort  of 
the  horses  to  get  into  the  side  track  which  cari-ied  the  wheels  of  the  coach 
over  the  bank  of  the  ditch  and  overturned  it,  which  occasioned  the  injury  of 
defendant  in  error.  Had  Ward  been  even  as  well  acquainted  with  the  road  as 
were  the  horses,  the  accident  would  not  have  happened.  This  was  one  of  the 
perils  of  the  road  that  could  not  have  occurred  with  a  driver  familiar  to  it, 
exercising  ordinary  prudence  and  care.  And  the  plaintiffs  in  error  having  failed 
to  furnish  such  a  driver,  must  be  held  lial)le  to  make  compensation  for  damages 
resulting  from  that  neglect  of  duty."  '^ 

If  a  stage  proprietor  furnishes  a  known  drunkard  for  a  driver,  through  whose 
negligence,  while  intoxicated,  a  passenger  receives  an  injury,  it  is  a  proper  case 
for  exemplary  damages.* 

§  23.  Care  and  Vigilance  exacted  of  the  Driver.  —  Where  it  is  open  to  the 
driver  to  adopt  one  of  two  courses,  one  of  which  is  safe  and  the  other  is  hazard- 
ous^ and  he  adopts  the  latter,  and  an  accident  ensues  and  a  passenger  is  injured^ 

»  Duller  V.  Talbot,  23  111.  357.  «  Id.  362.  «  Sawyer  v.  Sauer,  10  Kan.  406. 


240  LIABILITY    OF    THE    CARRIER    FOR    NEGLIGENCE. 


Notes. 


the  proprietor  must  pay  damages.^  In  another  case,  where  the  driver  of  a  stage- 
coach ascending  a  hill  saw  coming  towards  him  a  tilted  wagon  and  another 
stage-coach,  and  turning  to  avoid  them  his  coach  came  upon  a  bank  of  earth, 
by  which  it  was  overturned,  the  question  was  put  by  Lord  Ellenborough  to 
the  jury  whether  he  might  have  exercised  a  better  discretion  in  stopping.  "In 
order  to  subject  the  master  to  damages,"  said  he,  "  it  must  appear  that  there  has 
been  something  to  blame  on  the  part  of  his  servant,  and  he  is  blamable  if  he  has 
not  exercised  the  best  and  soundest  judgment  on  the  subject;  if  he  could  have 
exercised  a  better  judgment  than  he  did,  the  owner  is  liable."  ^ 

This  seems  a  severe  rule,  but  it  is  in  accordance  with  the  general  current  of 
authority  in  this  country,"  and  closely  resembles  what  was  said  to  the  jury  by 
Judge  Leavitt  in  a  case  tried  in  the  United  States  Circuit  Court  for  Ohio  in 
1840:  "The  jury  will  observe  that  the  law  holds  a  driver  to  the  observance  of 
the  strictest  care  and  the  most  unremitting  vigilance.  And,  hoover  unexcep- 
tionable may  be  his  general  character  as  a  driver,  if  in  a  particular  instance  he 
is  guilty  of  carelessness  or  negligence,  whereby  an  injury  occurs  to  a  passen- 
ger, his  employer,  whose  agent  he  is,  is  accountable.  If,  therefore,  the  jury 
should  come  to  the  conclusion,  after  a  deliberate  examination  of  the  testimony, 
that  the  coach,  owing  to  the  excessive  weight  put  upon  it,  was  unmanageable, 
iu  the  circumstances  in  which  it  was  placed,  by  any  power  or  skill  which  could 
be  applied  or  used  by  the  driver,  and  was  therefore  upset;  or  if  they  should 
believe  that  the  driver,  even  from  a  temporary  inattention  or  neglect,  permitted 
the  coach  to  get  into  a  predicament  from  which  an  upset  was  the  inevitable 
result;  or  if  they  believe  that  the  disaster  in  the  present  case  is  referable  to 
these  two  causes  combined,  they  will  find  for  the  plaintiff.  If,  on  the  other 
hand,  from  an  attentive  consideration  of  the  facts  of  the  case  as  exhibited  by 
the  evidence,  the  jury  should  be  of  opinion  that  the  accident  in  question  is  not 
imputable  to  any  impropriety  of  conduct  on  the  part  of  the  defendant's  agent  in 
loading  the  stage,  or  to  any  negligence  or  carelessness  on  the  part  of  the  driver, 
but  was,  as  contended  for  by  the  defendant's  counsel,  the  result  of  mere  acci- 
dent or  misfortune  which  no  human  forr-^ight,  care,  or  attention  could  have 
prevented,  the  defendant  cannot  be  held  legally  answerable."  * 

MoreoA'cr,  where  the  driver  of  a  coach  approaches  a  place  of  peculiar  danger 
to  passengers,  he  is  bound  to  warn  them  of  the  nature  of  the  danger,  to  the  end 
that  they  may  choose  whether  they  will  run  the  risk  of  it  or  not.  Thus,  where 
the  stage  reached  the  gateway  of  the  inn  where  it  was  to  stop,  and  the  driver 
requested  the  plaintiff,  a  woman,  who  was  riding  on  the  outside,  to  alight  there, 
and  she  replied  that  as  the  road  was  dirty  she  would  rather  be  driven  into  the 
yard,  and  he  told  her  that  the  passage  into  the  yard  was  very  awkward,  advised 
her  to  stoop,  and  then  drove  on,  and  it  appeared  that  the  passage  led  under  an 
archway  which  was  but  a  foot  higher  than  the  top  of  the  stage,  by  which  she  wa-- 
struck  and  greatly  injured,  it  was  held  a  case  for  damages  against  the  stage- 
owner.  If  the  driver  had  said  to  her,  "  'The  others  will  be  safe  in  proceeding, 
but  you  must  go  down  here,  as  you  cannot  remain  upon  the  coach  without  dan- 
ger to  your  life,'  she  could  only  have  blamed  her  own  imprudence  for  what 

1  Mayhew  v.  Boyce,  1  Stark.  423.  »  Supra,  §  4,  subsect.  3. 

2  Jackson  v.  Tollett,  2  Stark.  37.  See  also  ♦  Maury  v.  Talmadge,  2  McLean,  157,  166. 
Curtis  V.  Driukwater,  2  Barn.  &.  Adol.  169. 


STAGE    PROPRIETORS.  241 


Care  and  Visfilance  of  the  Driver. 


followed ;  but  he  should  have  given  her  the  means  to  judge,  if  he  was  to  leave 
her  to  make  her  election."  ^ 

Further,  the  proprietor  of  a  stage-coach  is  answerable  for  the  negligence  of 
the  driver  from  the  usual  place  of  taking  up  the  passengers,  not  only  till  the 
coach  arrives  at  its  place  of  destination,  but  until  the  passengers  are  there 
safely  set  down.  This  doctrine  is  stated  and  enforced  by  Lord  Ellenborough 
in  the  case  last  cited.^ 

Although  the  agent  of  a  stage-owner  requests  a  passenger  to  take  an  inside 
seat,  and  tells  him  that  he  will  ride  on  the  outside  at  his  peril,  and  the  passenger 
disobeys  the  injunction,  this  will  not  excuse  the  negligence  of  the  driver  in 
injuring  him.  The  passenger,  in  such  a  case,  assumes  the  peculiar  risks  of  his 
exposed  situation,  but  not  the  risks  resulting  from  the  negligence  of  the  driver; 
and  whether  his  disobeying  the  injunction  contributed  to  the  injurj',  is  a  question 
for  the  jury.*  Whether  the  vehicle  was  overturned  by  the  negligence  of  the 
driver,  will  be  a  question  of  fact  for  the  jury,  under  all  the  circumstances  of  the 
case.*  "It  is  impossible  to  lay  down  any' general  rule  by  which  the  inquiry 
whether  a  coach  is  excessively  laden  can  be  satisfactorily  tested.  The  character 
and  condition  of  the  road  over  which  a  vehicle  is  to  pass  will  be  the  main  con- 
sideration in  such  an  inquiry.  It  will  be  obvious  to  the  jury  that  upon  a 
properly  graded  and  well  finished  turnpike  there  will  be  no  great  danger  of  the 
upsetting  of  a  carriage  from  any  weight  that  may  be  put  on  it,  while  upon  one 
of  the  common  roads  of  the  country,  especially  over  a  hilly  region,  there  might 
be  very  great  danger  in  conveying  a  weight  which,  under  other  circumstances, 
could  not  be  regarded  as  excessive.  It  will  therefore  be  the  duty  of  the  jury, 
in  coming  to  a  conclusion  on  this  point,  to  take  into  consideration  the  number 
of  passengers,  the  weight  of  baggage,  the  general  character  of  the  road  along 
which  the  defendant's  stages  run,  and  especially  the  portion  of  it  over  which  the 
coach  was  passing  when  this  accident  occurred;  and  if  the  jury  believe  it  can 
be  fairly  referred  to  the  improper  loading  of  the  coach,  there  can  be  no  question 
but  what  the  defendant  is  legally  answerable  for  the  consequences.  It  is  cleai'Iy 
the  duty  of  a  stage-proprietor  to  see  that  the  safety  of  his  passengers  is  not 
put  at  hazard  by  an  excessive  load ;  and  if  he  disregards  or  violates  his  duty 
in  this  respect,  he  is  liable  for  any  injury  that  may  follow."  *  In  an  action 
for  an  injury  to  the  passenger,  alleged  to  have  been  occasioned  by  overturning 
the  stage,  it  has  been  held  incompetent  to  prove  that  it  was  the  custom  on  that 
route  to  carry  as  great  a  number  of  passengers  as  were  in  and  on  the  stage  at 
that  time.  The  defendant  cannot  thus  give  in  evidence,  either  in  his  own  justifi- 
cation or  in  extenuation  of  damages,  a  custom  or  practice  established  by  himself. 
But  a  general  custom  ag  to  the  number  of  passengers  which  can  be  carried  with 
safety  must  in  all  cases  vary  with  the  character  and  condition  of  the  road.  It 
has  been  held  competent  to  ask  of  drivers  acquainted  with  the  particular  route 

1  Duflleyv.  Smith,  1  Camp.  167.  Houston  etc.  R.  Co.  v.  Gorbett,  49  Texas, 

2  Dudley  r.  Smith,  swpra.    Accordingly,  in       573.    See /)os<.  Chap.  X. 

case  of  railway  carriers,  if  the  passenger  is  "  Keith  v.  Pinkham,  43  Me.  501. 

assaulted  and  injured  by  the  company's  ser-  <  Leavitt,  J.,  to  the  jury  iu  Maury  v.  Tal- 

vant  while  crning  off  the  car  at  the  i)lace  of  madge,  2  McLean,  157,  165. 

his  destination,  the  company  must  pay  dam-  ^  Per  Leavitt,  J.,  in  Maury  v.  Talmadge,2 


ages,  unlpi^a  the  act  of  the  servant  was  wil-        McLean,  157, 105. 
ful  or  outside  the  scope  of  his  employment. 

in 


242  LIABILITY    OF    THE    CARRIER   FOR    NEGLIGENCE. 


Notes. 


what  number  of  passengers  could  be  safely  carried  by  a  coach  such  as  that  in 
which  the  plaintiff  was,  in  the  state  in  which  the  road  was  at  the  time  of  the 
injury.i 

§24.  Overloading  the  Vehicle.  —  If  the  carrier  loads  his  vehicle  with  more 
passengers  than  its  strength  will  reasonably  warrant,  although  he  has  no  more 
persons  upon  it  than  the  statute  allows,  and  it  breaks  down,  he  must  pay  dam- 
ages to  a  passenger  injured.-  The  case  is  still  worse  where  he  overloads  the 
coach  with  passengers,  and  in  addition  to  this,  places  a  mass  of  heav^y  freight  on 
top.  "It  is  no  apology,"  said  the  Supreme  Court  of  Connecticut  in  a  case  of 
this  kind,  "that  freight  is  put  upon  these  stages,  as  in  this  case,  under  public  or 
any  other  notice.  The  liability  continues  the  same.  Nor  is  it  any  apology  that 
the  stage  proprietors  and  their  drivers  are  accustomed  to  load  do^vn  their  stages 
with  passengers  and  freight,  notwithstanding  the  state  of  the  roads,  untU 
nothing  more  can  be  crowded  within  or  accumulated  on  top.  It  is  high  time 
that  the  law  on  this  subject  should  be  better  understood  and  regarded,  and  that 
such  unbearable  liberties  should  cease  to  be  taken  by  persons  who  stipulate  to 
carry  passengers  safely  and  without  exposure.  Converting  stage-coaches  into 
wagons  to  transport  iron,  and  wellnigh  every  thing  else,  is  the  last  innovation 
upon  the  rights  of  the  travelling  community,  and  it  is  one  which  we  do  not 
intend  to  sanction  or  countenance."  In  the  case  in  which  this  lecture  was 
delivered  from  the  bench,  it  appeared  that  a  stage-sleigh  had  been  loaded  with 
tiiirteen  passengers,  with  their  baggage,  and  also  with  four  hundred  and  eighteen 
pounds  of  iron,  placed  on  top  of  the  cover.  On  turning  a  slippery  and  danger- 
ous place,  the  sleigh  was  upset  and  the  plaintiff  injured.  The  jury  having 
returned  a  verdict  for  the  defendant,  the  Supreme  Court  set  it  aside  as  against 
the  weight  of  evidence,  and  gi'anted  a  new  trial.* 

1  Maury  v.  Talmadge,  2  McLean,  157, 168.  *  Derwort  v.  Loomer,  21  Conn.  245. 

-  Israel  v.  Clark,  i  Esp.  259. 


CHAPTER    VI. 

CONTRIBUTORY   NEGLIGENCE   OF   THE   PASSENGER. 


Leading  Cases:  1.  Morrissey  v.  Wiggins  Ferry  Company. — The  general  doc- 
trine of  contributory  negligence  applied  to  injuries  to 
passengers. 

2.  Jones   v.  Boyce.  —  Passenger   acting  erroneously  under 

impulse  of  fear. 

3.  Bailroad  Company  v.  Jones.  —  Passenger  riding  in  an  un- 

authorized place. 

4.  Bailroad   Company  v.  Aspell.  —  Passenger  leaping   from 

train  while  in  motion. 

Notes:     §  1.  General  doctrines. 

2.  Riding  in  an  unauthorized  manner. 

(1.)  Arm  out  of  window. 
(2.)  Upon  the  car  platform. 
(3.)  In  the  baggage-car. 
(4.)  In  various  positions. 

3.  Leaping  on  or  off  cars  in  motion. 

4.  Getting  on  and  off  train  at  a  dangerous  place. 

5.  Passenger  laboring  under  a  disability. 


1.     THE     GENERAL    DOCTRINES     OF    CONTRIBUTORY    NEGLIGENCE 
APPLIED    TO    INJURIES    TO    PASSENGERS. 

Morrissey  v.  Wic4gins  Ferry  Company.* 

Supreme  Court  of  Missouri,  1869. 

Hon.  David  Wagxer,      1 
"     Philemon  Bliss,     1-  Judges. 
"     Warren  Currier,  I 

1.  Contributory  Negligence  —  Recovery  where  Passenger  is  in  Fault. —  The  doc- 

trine of  some  of  the  courts,  that  there  can  be  no  recovery  lor  negligence  where  the 
person  injured  is  in  the  least  fault,  denied. 

2.  On  the  contrary,  the  correct  rule  is  held  to  be,  that  although  the  passenger's  miscon- 

duct may  have  contributed  remotely  to  the  injury,  yet  if  the  carrier's  misconduct  was 
the  immediate  cause  of  it,  and  if  by  the  exercise  of  prudence  he  could  have  prevented 
it,  he  is  not  excused;  and  it  ought  to  be  left  to  the  jury  to  say  whether  (notwithstand- 
ing the  imprudence  of  the  passenger)  the  carrier  could  not,  by  the  exercise  of  reason- 
able diligence,  have  prevented  the  catastro)jhe. 

3.  The  decree  of  responsibility  to  which  carriers  of  passengers  are  subjected  is  not 

ordinary  care  merely,  whioh  will  make  them  liable  only  for  ordinary  neglect,  but 
extraordinary  care,  which  renders  them  liable  for  slight  neglect. 


Reported,  43  Mo.  380. 


(243) 


244  CONTRIBUTORY    NEGLIGENCE    OF    THE    PASSENGER. 

Morrissey  v.  Wiggins  Ferry  Company. 

Appeal  from  the  St.  Louis  Circuit  Court. 
The  facts  are  stated  in  the  opinion  of  the  court. 
On  the  trial,  the  following,  among  other  instructions,  were  given  to  the 
jury  for  the  defendant:  — 

1.  The  jury  are  instructed  that  they  are  to  consider  whether  or  not 
there  was  any  negligence  on  the  part  of  the  deceased,  or  a  want  of  care 
and  common  prudence  ordinarily  exercised  on  such  occasions  and  in 
like  circumstances.  And  if  they  believe  from  the  evidence  that  there 
was  such  negligence  or  want  of  care  and  prudence  on  her  part,  which 
produced,  or  contributed  to  produce,  the  accident  and  death  of  said 
deceased  (if  they  believe  she  was  drowned),  then  they  will  find  for  the 
defendant. 

2.  Unless  the  jury  believe  from  the  evidence  that  said  Annie  Mor- 
rissey went  overboard  and  was  drowned,  and  that  she  was  then  a  minor 
under  the  age  of  eighteen  years,  and  the  daughter  of  plaintiff,  and  that 
such  accident  and  death  were  occasioned  by  the  neghgence,  unskilful- 
ness,  or  criminal  intent  of  the  engineer,  agents,  or  emplo3-ees  of  the 
defendant,  while  running,  conducting,  or  managing  the  feny-boat,  as 
respects  the  keeping  of  the  entrance  to  said  boat,  where  passengers 
go  on  and  off,  properly  guarded  and  protected,  and  as  respects  keeping 
lights  on  said  boat  and  wharf-boat,  and  unless  they  further  believe  that 
such  accident  and  death  resulted  without  any  negligence  or  want  of 
care  on  her  part  which  produced,  or  contributed  to  produce,  such  acci- 
dent and  death,  the}-  will  find  for  defendant. 

Morris  &  Peabody^  for  appellant ;  Ewing  &  Holliday,  for  respondent. 

"Wagner,  J.,  delivered  the  opinion  of  the  court. — This  action  was 
brought  under  the  second  section  of  chap.  147  of  the  General  Stat- 
utes, and  damages  claimed  to  the  amount  of  S5,000,  by  the  plaintiff, 
as  the  only  surviving  parent  of  Annie  Morrissey,  who,  it  is  alleged,  was 
a  minor  and  unmarried,  and  was  drowned  while  crossing  the  Mississippi 
River  on  one  of  the  defendant's  ferry-boats,  in  consequence  of  the 
negligence,  unskilfulness,  or  criminal  intent  of  defendant's  agents  and 
employees  in  managing  said  boat. 

On  the  trial  in  the  court  below,  under  certain  instructions,  the  jury 
found  a  verdict  for  the  defendant.  There  was  much  evidence  given, 
and  it  was  conflicting  in  its  character ;  but  I  shall  neither  detail  nor 
comment  on  it,  as  it  belongs  exclusively  to  the  jury  to  attach  to  it 
whatever  weight  and  consideration  they  may  deem  it  deserves. 

The  whole  defence  was  based  upon  the  ground  of  contributory  negli- 
gence ;  that  the  deceased,  through  her  imprudence  and  want  of  care, 
produced  or  contributed  to  the  accident  in  such  a  manner  as  ought  to 
preclude  a  recoverv.  *  That  there  is  a  difference  in  the  adjudications 


i 


GENERAL    PRINCIPLES.  245 


Supreme  Court  of  Missouri. 


upon  this  subject,  and  that  some  courts  have  held  that  no  recovery 
can  be  had  where  the  injured  party  is  in  the  least  in  fault,  cannot  be 
disputed.  But  such  is  not  the  ruling  of  this  court;  and  it  is  to  be 
observed  that  the  courts  which  have  heretofore  laid  down  the  above 
doctrine  are  rapidly  retracing  their  steps,  and  declaring  a  rule  more 
reasonable  and  in  consonance  with  justice. 

The  question  has  been  discussed  in  several  recent  cases  in  this  court, 
and  the  law  must  be  considered  as  established,  — no  longer  in  doubt  or 
open  to  question.  The  settled  principle  now  is  that  it  ought  to  be  left 
to  the  jury  to  say  whether,  notwithstanding  the  imprudence  of  the 
injured  person,  the  defendant  could  not,  in  the  exercise  of  reasonable 
diligence,  have  prevented  the  catastrophe. 

The  degree  of  responsibility  to  which  carriers  of  passengers  are  sub- 
jected is  not  ordinary  care  merely,  whicb  will  make  them  liable  only  for 
ordinary  neglect,  but  extraordinary  care,  which  renders  them  liable  for 
slight  neglect. 

la  a  recent  case  in  this  court,  in  discussing  the  liability  of  passenger- 
carriers,  we  declared  the  rule  to  be  "that  the  carrier  shajl  be  guilty  of 
some  negligence  which  mediately  or  immediatel}^  produced  or  enhanced 
the  injury,  and  that  passengers  should  not  have  been  guilty  of  any  care- 
lessness and  imprudence  which  directly  contributed  to  the  injury,  since 
no  one  can  recover  for  an  jnjury  of  which  his  own  negligence  was,  in 
whole  or  in  part,  the  proximate  cause;  and  that,  although  the  plaintiff's 
misconduct  may  have  contributed  remotely  to  the  injury,  if  the  defenu- 
ant's  misconduct  was  the  immediate  cause  of  it,  and  with  the  exercise 
of  prudence  he  might  have  prevented  it,  he  is  not  excused."  ^  The 
concluding  paragraph  of  defendant's  second  instruction  is  objectionable. 
It  tells  the  jury  that  unless  they  believe  that  the  accident  and  death 
resulted  without  any  negligence  or  want  of  care  on  the  part  of  Annie, 
which  produced,  or  contributed  to  produce,  such  accident  and  death, 
then  they  sliould  find  for  the  defendant. 

This  was  in  direct  conflict  with  the  law  as  above  declared.  It  de- 
stroyed the  plaintiff's  right  of  action  for  the  least  fault  on  the  part  of 
deceased,  and  exonerated  the  defendant  although  the  unskilfulness,  neg- 
ligence, and  criminal  intent  of  its  agents  and  employees  may  have  directly 
caused  the  injury.     Such  is  not  the  law,  and  we  hope  it  never  will  be. 

The  plaintiff  asked  two  instructions,  which  were  refused.  They  are 
as  follows :  — 

"That  if   the   jury  find  from  the  evidence  that  the  employees   of 

1  Huelsenkamp  v.  Citizens'  R.  Co.,  37  Mo.  537 ;  Kennedy  v.  North  Missouri  R.  Co.,  36  Mo.  3.51 ; 
Bolandr;.  Missouri  R.  Co.,  36  Mo.  481;  Meyer  v.  Pacific  R.  R.,  40  Mo.  153;  Liddy  f .  St.  Louis  R. 
Co.,  40  Mo.  506. 


246  CONTRIBUTORY    NEGLIGENCE    OF    THE    PASSENGER. 

Jones  V.  Boyce. 

defendant,  or  either'of  them,  were  guilty  of  negligence  in  not  keeping 
the  entrance  to  defendant's  boat  properly  guarded  or  protected,  or  in 
not  keeping  suflScient  lights  on  said  boat,  or  on  the  wharf-boat,  by  reason 
of  which  deceased  came  to  her  death,  and  that  deceased  was  not  guilty 
of  any  want  of  ordinary  care  and  prudence  which  directly  contributed 
to  the  injury,  then  the  defendant  is  liable  in  this  suit. 

"That  although  the  deceased  may  have  been  guilty  of  misconduct, 
or  failed  to  exercise  ordinary  care  or  prudence  while  a  passenger  on 
defendant's  boat,  which  may  have  contributed  remotely  to  the  death  of 
deceased,  yet  if  the  employees,  or  either  of  them,  of  the  defendant 
were  guilty  of  negligence  which  was  the  immediate  cause  of  the  death, 
and  with  the  exercise  of  prudence  by  said  employees,  or  either  of  them, 
said  injury  and  death  might  have  been  prevented,  the  defendant  is 
liable  in  this  suit," 

The  instructions  asserted  correct  propositions  of  law,  and  should  have 
been  given.  They  tell  the  jury  that  if  the  deceased  only  remotely 
contributed  to  the  accident,  and  if  the  agents  and  employees  of  the 
defendant  were  the  direct  and  immediate  cause,  and  might  have  pre- 
vented it  by  the  exercise  of  prudence  and  care,  the  defendant  is  liable. 
Nothing  can  be  clearer.      [Unimportant  point  omitted.] 

With  the  concurrence  of  the  other  judges,  the  judgment  will  be 
reversed  and  the  cause  remanded. 

Judgment  reversed. 


2.    PASSENGER  ACTING   ERRONEOUSLY  UNDER    IMPULSE    OF  FEAR. 

Jones  v.  Boyce.* 

English  Court  of  King's  Bench,  1816. 

Before  Lord  Ellexborough,  Chief  Justice,  at  Nisi  Prins. 

Passenerer  lieaping  from  Stage-coach.  —  If,  through  the  default  of  a  coach  proprietor 
in  neglecting  to  provide  projier  means  of  conveyance,  a  passenger  be  placed  in  so 
perilous  a  situation  as  to  render  it  prudent  for  him  to  leap  from  the  coach,  whereby  hia 
leg  is  broken,  the  proprietor  will  be  responsible  in  damages,  although  the  coach  was 
not  actually  overturned. 

This  was  an  action  on  the  ease  against  the  defendant,  a  coach  pro- 
prietor, for  so  negligently  conducting  the  coach  that  the  plaintiff,  an 
outside  passenger,  was  obliged  to  jump  off  the  coach,  in  consequence 
of  which  his  leg  was  broken. 

It  appears  that  soon  after  the  coach  had  set  off  from  an  inn,  the  coup- 

•  Heported,  1  Stark.  493. 


ACTING    ERRONEOUSLY    THROUGH    FEAR.  247 

Lord  Elleuborough  at  Nisi  Prius. 

ling- rein  broke,  and  one  of  the  leaders  being  ungovernable  whilst  the 
coach  was  on  a  descent,  the  coachman  drew  the  coach  to  one  side  of 
the  road,  where  it  came  in  contact  with  some  piles,  one  of  which  it 
broke,  and  afterwards  the  wheel  was  stopped  by  a  post.  Evidence  was 
adduced  to  show  that  the  coupling-rein  was  defective,  and  that  the 
breaking  of  the  rein  had  rendered  it  necessary  for  the  coachman  to 
drive  to  the  side  of  the  road  in  order  to  stop  the  career  of  the  horses. 
Some  of  the  witnesses  stated  that  the  wheel  was  forced  against  the  post 
with  great  violence ;  and  one  of  the  witnesses  stated  that  at  that  time 
the  plaintiff,  who  had  before  been  seated  at  the  back  part  of  the  coach, 
was  jerked  forward  in  consequence  of  the  concussion,  and  that  one  of 
the  wheels  was  elevated  to  the  height  of  eighteen  or  twenty  inches ;  but 
whether  the  plaintiff  jumped  off  or  was  jerked  off  he  could  not  say.  A 
witness  also  said:  "I  should  have  jumped  down  had  I  been  in  his  [the 
plaintiff's]  place,  as  the  best  means  of  avoiding  the  danger."  The 
coach  was  not  overturned,  but  the  plaintiff  was  immediately  afterwards 
seen  lying  on  the  road  with  his  leg  broken,  the  bone  having  been  pro- 
truded through  the  boot. 

Upon  this  evidence,  Lord  Ellenborough  was  of  opinion  that  there  was 
a  case  to  go  to  the  jury,  and  a  considerable  mass  of  evidence  was  then 
adduced  tending  to  show  that  there  was  no  necessity  for  the  plaintiff  to 
jump  off. 

Lord  Ellenborough,  in  his  address  to  the  jury,  said:  This  case 
presents'  two  questions  for  your  consideration  :  First,  whether  the  pro- 
prietor of  the  coach  was  guilty  of  any  default  in  omitting  to  provide 
the  safe  and  proper  means  of  conveyance ;  and  if  you  should  be  of  that 
opinion,  the  second  question  for  your  consideration  w'.U  be  whether  that 
default  was  conducive  to  the  injur\'  which  the  plaintiff  has  sustained  ; 
for,  if  it  was  not  so  far  conducive  as  to  create  such  a  reasonable  degree 
of  alarm  and  apprehension  in  the  mind  of  the  plaintiff  as  rendered  it 
necessary'  for  him  to  jump  down  from  the  coach  in  order  to  avoid  imme- 
diate danger,  the  action  is  not  maintainable.  To  enable  the  plaintiff  to 
sustain  the  action,  it  is  not  necessary  that  he  should  have  been  thrown 
off  the  coach ;  it  is  sufficient  if  he  was  placed  by  the  misconduct  of  the 
defendant  in  such  a  situation  as  obliged  him  to  adopt  the  alternative  of 
a  dangerous  leap  or  to  remain  at  certain  peril.  If  that  position  was 
occasioned  by  the  default  of  the  defendant,  the  action  may  be  sujv 
ported.  On  the  other  hand,  if  the  plaintiff's  act  resulted  from  a  rash 
appreliension  of  danger  which  did  not  exist,  and  the  injury  which  he 
sustained  is  to  be  attributed  to  rashness  and  imprudence,  he  is  not 
entitled  to  recover.  The  question  is  whether  he  was  placed  in  such  a 
situation  as  to  render  wliat  he  did  a  prudent  precaution  for  the  purpose 


248  CONTRIBUTORY    NEGLIGENCE    OF    THE    PASSENGER. 

Riiilroad  Company  v.  Jones. 

of  self-preservation.  His  lordship,  after  recapitulating  tlie  facts,  and 
commenting  upon  them,  and  particularly  on  the  circumstance  of  the 
rein  being  defective,  added:  If  the  defect  in  the  rein  was  not  the 
constituent  cause  of  the  injury,  the  plaintiff  will  not  be  entitled  to  your 
verdict;  therefore,  it  is  for  your  consideration  whether  the  plaintiff's  act 
was  the  measure  of  an  unreasonably  alarmed  mind,  or  such  as  a  reason- 
able and  prudent  mind  would  have  adopted.  If  I  place  a  man  in  such  a 
situation  that  he  must  adopt  a  perilous  alternative,  I  am  responsible  for 
the  consequences.  If,  therefore,  j'ou  should  be  of  opinion  that  the  reins 
were  defective,  did  this  circumstance  create  a  necessity  for  what  he  did, 
and  did  he  use  proper  caution  and  prudence  in  extricating  himself  from 
the  apparently  impending  peril?  If  you  are  of  that  opinion,  then,  since 
the  original  fault  was  in  the  proprietor,  he  is  liable  to  the  plaintiff  for 
the  injury  which  his  misconduct  has  occasioned.  This  is  the  first  case 
of  the  kind  which  I  recollect  to  have  occurred.  A  coach  proprietor 
certainly  is  not  to  be  responsible  for  the  rashness  and  imprudence  of 
a  passenger;  it  must  appear  that  there  existed  a  reasonable  cause  for 
alarm. 

The  jury  found  a  verdict  for  the  plaintiff.     Damages,  £300. 

Garrow,  A.  G.,  and  V.  Lawes,  for  the  plaintiff;  Topping,  Scarlett, 
and  Espinasse,  for  the  defendant. 


3.    PASSENGER  RmiNG  IN  AN  UNAUTHORIZED  POSITION. 

Kailroad  CoaiPANY  V.  Jones.* 
Supreme  Court  of  the  United  States,  1877, 

Hon.  Morrison  R.  Waite,  Chief  Justice, 

"    Nathan  Clifford, 

"     Samuel  F.  Miller, 

"    William  Strong, 

"    Ward  Hunt, 

«    XT         TT  o  i-  Justices, 

"    Noah  H.  Swayne,       ' 

"    Stephen  J.  Field, 

"    Joseph  P.  Bradley, 

"    John  M.  Harlan, 

Case  in  Judgrment-  —  The  plaintiff,  a  laborer  in  the  employ  of  a  railway  company,  when 
about  to  leave  the  place  where  he  was  working,  on  one  of  the  defendant's  trains,  was 
told  by  the  person  superintending  him,  who  was  also  conductor  of  the  train,  to  get  on 
anywhere,  as  the  train  was  in  a  hurry  to  leave.    The  plaintiff  got  on  the  pilot  of  the 

*  Reported,  95  T^.  S.  439. 


RIDING    IN    UNAUTHORIZED    POSITION.  249 

Supreme  Court  of  the  United  States. 

locomotive,  which  was  a  dangerous  place  to  lide.  While  on  the  trip,  he  was  injured  by 
a  collision  between  the  locomotive  and  some  other  cars  of  the  company,  caused  by  the 
negligence  of  the  company.  The  proper  place  for  him  to  ride  was  in  a  box- car  on  the 
train,  provided  for  the  employees ;  and  he  had  been  told  previously  always  to  ride  there, 
and  had  been  forbidden  riding  on  the  pilot  of  the  locomotive.  No  one  of  those  in  the 
box-car  was  injured,  and  he  would  not  have  been  if  he  had  ridden  there.  Held,  that 
the  plaintiflf  was  guilty  of  contributory  negligence,  and  could  not  recover  of  the  defend- 
ant for  the  injury. 

In  error  to  the  Supreme  Court  of  the  District  of  Columbia. 

Enoch  Trotter,  for  plaintiff  in  error;  Edward  G.  Carrington  and 
Campbell  Carrington,  contra. 

Mr.  Justice  Swatne  delivered  the  opinion  of  the  court. — The  defend- 
ant in  error  was  the  plaintiff  in  the  court  below.  Upon  the  trial  there 
he  gave  evidence  to  the  following  effect:  For  several  months  prior  to 
the  12th  of  November,  1872,  he  was  in  the  service  of  the  company  as  a 
day-laborer.  He  was  one  of  the  party  of  men  employed  in  constructing 
and  keeping  in  repair  the  roadway  of  the  defendant.  It  was  usual  for 
the  defendant  to  convey  them  to  and  from  their  place  of  work.  Some- 
times a  car  was  used  for  this  purpose ;  at  others,  only  a  locomotive 
and  tender  were  provided.  It  was  common,  whether  a  car  was  provided 
or  not,  for  some  of  the  men  to  ride  on  the  pilot  or  bumper  in  front  of 
the  locomotive.  This  was  done  with  the  approval  of  Van  Ness,  who 
was  in  charge  of  the  laborers  when  at  work,  and  the  conductor  of  the 
train  which  carried  them  both  ways.  The  plaintiff  had  no  connection 
with  the  train.  On  the  12Lh  of  November  before  mentioned,  the  party 
of  laborers,  including  the  plaintiff,  under  the  direction  of  Van  Ness, 
were  employed  on  the  west  side  of  the  eastern  branch  of  the  Potomac, 
near  where  the  defendant's  road  crosses  that  stream,  in  filling  flat-cars 
with  dirt  and  unloading  them  at  an  adjacent  point.  The  train  that  even- 
ing consisted  of  a  locomotive,  tender,  and  box-car.  When  the  party 
was  about  to  leave  on  their  return  that  evening,  the  plaintiff  was  told 
by  Van  Ness  to  jump  on  anywhere  —  that  they  were  behind  time  and 
must  hurry.  The  plaintiff  was  riding  on  the  pilot  of  the  locomotive, 
and  while  there  the  train  ran  into  certain  cars  belonging  to  the  defendant 
and  loaded  with  ties.  These  cars  had  become  detached  from  another 
train  of  cars,  and  were  standing  on  the  track  in  the  Virginia  Avenue 
tunnel.  The  accident  was  the  result  of  negligence  on  the  part  of  the 
defendant.  Thereby  one  of  the  plaintiff's  legs  was  severed  from  his 
liody,  and  the  other  one  severely  injured.  Nobody  else  was  hurt,  except 
two  other  persons,  — one  riding  on  the  pilot  with  the  plaintiff,  and  the 
other  one  on  the  cars  standing  in  the  tunnel. 

The  defendant  then  gave  evidence  tending  to  prove  as  follows:  About 
six  weeks  or  two  months  before  the  accident,  a  box-car  had  been  assigned 


250  CONTRIBUTORY    NEGLIGENCE    OF    THE    PASSENGER. 

Eailroad  Company  v.  Jones. 

to  the  construction-train  with  which  the  plaintiff  was  employed.  The 
car  was  used  thereafter  every  day.  About  the  time  it  was  first  used, 
and  on  several  occasions  before  the  accident,  Van  Ness  notified  the 
laborers  that  they  must  ride  in  the  car,  and  not  on  the  engine ;  and  the 
plaintiff  in  particular,  on  several  occasions  not  long  before  the  disaster, 
was  forbidden  to  ride  on  the  pilot  both  by  Van  Ness  and  the  engineer 
in  charge  of  the  locomotive.  The  plaintiff  was  on  the  pilot  at  the  time 
of  the  accident  without  the  knowledge  of  any  agent  of  the  defendant. 
There  was  plenty  of  room  for  the  plaintiff  in  the  box-car,  which  was 
open.  If  he  had  been  anywhere  but  on  the  pilot,  he  would  not  have  been 
injured.  The  collision  was  not  brought  about  by  any  negligence  of  the 
<lefendant's  agents,  but  was  unavoidable.  The  defendant's  agents  in 
•charge  of  the  two  trains,  and  the  watchman  in  the  tunnel,  were  compe- 
tent men. 

The  plaintiff,  in  rebuttal,  gave  evidence  tending  to  show  that  some- 
times the  box-car  was  locked  when  there  was  no  other  car  attached  to 
the  train,  and  that  the  men  were  allowed  by  the  conductor  and  engineer 
to  ride  on  the  engine,  and  that  on  the  evening  of  the  accident  the 
€ngineer  in  charge  of  the  locomotive  knew  that  the  plaintiff  was  on  the 
pilot. 

The  evidence  being  closed,  the  defendant's  counsel  asked  the  court 
to  instruct  the  jury  as  follows:  "If  the  jur}' find  from  the  evidence 
that  the  plaintiff  knew  the  box-car  was  the  proper  place  for  him,  and  if 
he  knew  his  position  on  the  pilot  of  the  engine  was  a  dangerous  one, 
then  they  will  render  a  verdict  for  the  defendant,  whether  they  find  that 
its  agents  allowed  the  plaintiff  to  ride  on  the  pilot  or  not."  This 
instruction  was  refused,  and  the  defendant's  counsel  excepted. 

Three  questions  arise  upon  the  record:  1.  The  exception  touching 
the  admission  of  evidence.  2.  As  to  the  application  of  the  rule  rela- 
tive to  injuries  received  by  one  servant  by  reason  of  the  negligence  of 
another  servant,  both  being  at  the  time  engaged  in  the  same  service 
of  a  common  superior.  3.  As  to  the  contributory  negligence  on  the 
part  of  the  plaintiff. 

"We  pass  b^^  the  first  two  without  remark.  "We  have  not  found  it 
necessary  to  consider  them.  In  our  view,  the  point  presented  by  the 
third  is  sufBcient  to  dispose  of  the  case. 

Negligence  is  failure  to  do  what  a  reasonable  and  prudent  person 
would  ordinarily  have  done  under  the  circumstances  of  the  situation,  or 
<loing  what  such  a  person  under  the  existing  circumstances  would  not 
have  done.  The  essence  of  the  fault  may  lie  in  omission  or  commis- 
sion.    The  duty  is  dictated  and  measured  by  the  exigencies  of  the 


RIDING    IN    UNAUTHORIZED    POSITION.  251 

Supreme  Court  of  the  United  States. 

occasion.!  One  who  by  negligence  has  brought  an  injury  upon  himself 
cannot  recover  damages  for  it.  Such  is  the  rule  of  the  civil  and  of  the 
common  law.  A  plaintiff  in  such  cases  is  entitled  to  no  relief.  But 
where  the  defendant  has  been  guilty  of  negligence  also,  in  the  same 
-connection,  the  result  depends  upon  the  facts.  The  question  in  such 
cases  is,  (1)  whether  the  damage  was  occasioned  entirely  by  the  neg- 
ligence or  improper  conduct  of  the  defendant;  or  (2)  whether  the 
plaintiff  himself  so  far  contributed  to  the  misfortune  by  his  own  negli- 
gence or  want  of  ordinary  care  and  caution,  that  but  for  such  neg- 
ligence or  want  of  care  and  caution  on  his  part,  the  misfortune  would 
not  have  happened.  In  the  former  case,  the  plaintiff  is  entitled  to 
recover;  in  the  latter,  he  is  not.^ 

It  remains  to  apply  these  tests  to  the  case  before  us.  The  facts  with 
respect  to  the  cars  left  in  the  tunnel  are  not  fully  disclosed  in  the  record. 
It  is  not  shown  when  they  were  left  there,  how  long  they  had  been 
there,  when  it  was  intended  to  remove  them,  nor  why  they  had  not  been 
removed  before.  It  does  appear  that  there  was  a  watchman  at  the 
tunnel,  and  that  he  and  the  conductor  of  the  train  from  which  they 
were  left,  and  the  conductor  of  the  train  which  carried  the  plaintiff, 
were  all  well  selected  and  competent  for  their  places.  For  the  purposes 
of  this  case,  we  assume  that  the  defendant  was  guilty  of  negligence. 

The  plaintiff  had  been  warned  against  riding  on  the  pilot,  and  forbid- 
den to  do  so.  It  was  next  to  the  cow-catcher,  and  obviously  a  place  of 
peril,  especiall}'  in  case  of  collision.  There  was  room  for  him  in  the 
box-car.  He  should  have  taken  his  place  there.  He  could  have  gone 
into  the  box-car  in  as  little,  if  not  less  time  than  it  took  to  climb  to  the 
[)ilot.  The  knowledge,  assent,  or  direction  of  the  company's  agents  as 
to  what  he  did  is  immaterial.  If  told  to  get  on  anywhere,  that  the  train 
was  late,  and  that  he  must  hurry,  this  was  no  justification  for  taking 
such  a  risk.  As  well  might  he  have  obeyed  a  suggestion  to  ride  on  the 
cow-catcher,  or  put  himself  on  the  track  before  the  advancing  wheels  of 
the  locomotive.  The  company,  although  bound  to  a  liigh  degree  of 
care,  did  not  insure  his  safety.  He  was  not  an  infant,  uor  non  compos. 
The  liability  of  the  company  was  conditioned  upon  the  exercise  of 
reasonable  and  proper  care  and  caution  on  his  part.  Without  the  latter, 
the  former  could  not  arise.  He  and  another  who  rode  beside  him  were 
the  only  persons  hurt  upon  the  train.     All  those  in  the  box-car,  where 

1  See  Whart.  on  Neg.,  §  1,  and  notes.  Davies  v.  Mann,  10  Mee.  &  W.  546;  Clayarda 

«  Tuff  V.  Warman,  5  C.  B.  (N.  8.)  573;   But-  v.  Detliick,  12  Q.  B.  4;«;  Van  Lien  v.  Scoville 

terfleld  v.  Forrester,  11  East,  GO;  Briilge  v.  Co.,  14  Abb.  Pr.  (N.  8.)  74;  Ince  v.  East  Boa- 

(irand  Junction  R.  Co.,   3  Mee.  &   VV.  244;  ton  Co.,  106  Mass.  149. 


252  CONTRIBUTORY    NEGLIGENCE    OF    THE    PASSENGER. 

Railroad  Company  v.  Aspell. 

he  should  have  been,  were  uninjured.  He  would  have  escaped  also  if 
he  had  been  there.  His  injury  was  due  to  his  own  recklessness  and 
folly.  He  was  himself  the  author  of  his  misfortune.  This  is  shown 
with  as  near  an  approach  to  a  demonstration  as  any  thing  short  of  mathe- 
matics will  permit.  The  case  is  thus  clearly  brought  within  the  second 
of  the  predicates  of  mutual  negligence  we  have  laid  down.^ 

The  plaintiff  was  not  entitled  to  recover.  It  follows  that  the  court 
erred  in  refusing  the  instructions  asked  upon  this  subject.  If  the  com- 
pany had  prayed  the  court  to  direct  the  jury  to  return  a  verdict  for  the 
defendant,  it  would  have  been  the  duty  of  the  court  to  give  such  direc- 
tions, and  error  to  refuse. ^ 

Judgment  reversed,  and  the  cause  remanded  with  directions  to  issue  a 
venire  ne  novo,  and  to  proceed  in  conformity  with  this  opinion. 


4.  PASSENGER  LEAPING  FROM  TRAIN  WHILE   IN  MOTION. 

Railroad  Company  v.  Aspell.* 
Supreme  Court  of  Pennsylvania,  1854, 


Hon.  Jeremiah  S.  Black,  Chief  Justice, 
"     Ellis  Lew^is, 
"     Walter  H.  Lowrie, 
"     George  W.  Woodward, 
"    John  C.  Knox, 


Justices, 


If  a  passeng'er-train,  instead  of  stopping  at  the  station  where  a  passenger  is  to  get  off, 
passes  by  it,  though  at  a  diminished  rate  of  speed,  and  the  passenger,  against  the 
warning  of  the  conductor,  leaps  from  the  train  while  in  motion,  and  is  injured,  he 
cannot  recover  damages  of  the  company;  and  this  is  so,  although  the  conductor  calls 
out  the  name  of  the  station  before  it  is  reached. 

Error  to  the  Common  Pleas  of  Delaware  County. 
This  was  an  action  on  the  case  by  Richard  Aspell  against  the  Penn- 
sylvania Railroad  Company. 

It  was  alleged  in  the  declaration  that  the  plaintiff  became  a  passenger 

*  Reported,  23  Pa.  St.  147. 

»  Hickey  v.  Railroad  Co.,  14  Allen,  429;  etc.  R.  Co.  v.  Yarwood,  15  111.  468;  Doggettr. 

Todd  V.  Railroad  Co.,  3  Allen,  18;  s.  c.  7  Railroad  Co.,  34  Iowa,  285. 

Allen,  207;  Gavett  r.  Railroad  Co.,  16  Gray,  «  Gavett   v.    Railroad   Co.,  supra;    Mer- 

501;Lucasv.  Railroad  Co.,  6  Gray,  64;  Ward  chants'   Rank  v.   State  Bank,  10  WaU.  605; 

v.RailroadCo.,2  Abb.  Pr.  (N.  S.)  411;  Galena  Pleasants  «.  Fant,  22  WaU.  121. 


LEAFING    FROM    TRAIN    WHILE    IN    MOTION.  253 

Supreme  Court  of  Pennsylvania. 

in  the  cars  of  the  Pennsylvania  Railroad  Company  from  Philadelphia  to 
Morgan's  Corner ;  that  the  car  was  not  stopped  at  the  latter  place,  so  as 
to  allow  him  to  alight  safely ;  that  in  attempting  to  alight,  he  was,  by 
reason  of  the  rapid  motion  of  the  cars,  thrown  upon  the  ground  and 
one  of  his  feet  injured. 

The  plea  was,  not  guilty.     Verdict  for  the  plaintiff  for  Si, 500. 

The  plaintiff  took  passage  from  Philadelphia  for  Morgan's  Corner  in 
March,  1851,  in  the  night  line.  Just  before  reaching  the  latter  place. 
the  State  agent  endeavored  to  give  the  usual  signal  to  the  engineer  to 
stop,  by  pulling  the  bell-rope.  The  rope  did  not  operate,  though  the 
speed  of  the  train  was  checked  by  the  engineer  in  oi'der  more  safely  to 
pass  certain  switches.  The  speed  of  the  train  increasing,  other  signals 
were  made  to  the  engineer  to  stop ;  but  whilst  the  train  was  in  motion 
ihe  plaintiff  leaped  from  the  car,  though  warned  by  the  conductor  and 
brakeman  not  to  do  so,  and  informed  that  the  train  would  be  stopped 
and  backed  to  the  station.     The  plaintiff's  foot  was  injured. 

The  court  below  charged  that  the  pulling  the  bell-rope,  and  the 
:innounceraent  of  Morgan's  Corner,  warned  the  plaintiff  that  he  had 
arrived  there,  and  was  expected  to  prepare  for  leaving ;  that  though 
he  was  warned  not  to  jump,  he  could  nevertheless  recover  for  the  injury 
received ;  that  the  agents  of  the  company,  in  announcing  to  the  pas- 
sengers the  place  of  arrival  while  the  cars  were  in  motion  at  the  rate 
of  from  seven  to  ten  miles  an  hour,  did  not  exercise  the  degree  of 
diligence  and  care  which  the  law  required ;  that  the  train  should  have 
been  stopped  before  such  announcement  as  to  the  place  was  made. 

It  was  further  charged  that  in  this  case  a  contract  existed,  and  the 
train  should  have  been  stopped;  that  the  announcement  of  Morgan's 
Corner  caused  the  plaintiff,  in  going  to  the  platform,  to  be  in  a  position 
of  danger,  and  although  it  was  imprudent  in  the  plaintiff  to  jump  from 
the  car,  though  warned  of  the  danger,  yet  the  agents  of  the  companj- 
being  in  fault,  the  plaintiff  could  recover. 

It  was  further  charged  that  the  imprudence  of  the  plaintiff  might 
be  considered  by  the  jury  in  fixing  the  damages. 

The  portions  of  the  charge  referred  to  were  assigned  for  error. 

W.  DarUng'oii,  for  plaintiff  in  error;  Lewis,  for  defendant  in  error. 

The  opinion  of  the  court  was  delivered  by  — 

Black,  C.  J.  — The  plaintiff  below  was  a  passenger  in  the  defendants' 
cars  from  Philadelpliia  to  Morgan's  Corner.  The  train  should  have 
stopped  at  the  latter  place ;  but  some  defect  in  the  bell-rope  i)revented 
the  conductor  from  making  the  pi-oper  signal  to  tiie  engineer,  who  there- 
fore went  past,  though  at  a  speed  somewhat  slackened  on  account  of 


254  CONTRIBUTOKY    NEGLIGENCE    OF    THE    PASSENGER. 

Railroad  Company  v.  Aspell. 

the  switches  which  were  there  to  be  crossed.  The  plaintiff,  seeing 
himself  about  to  be  carried  on,  jumped  from  the  platform  of  the  car, 
and  was  seriously  hurt  in  the  foot.  He  brought  this  action ;  and  the 
jury,  with  the  approbation  of  the  court,  gave  him  $1,500  in  damages. 

Persons  to  whom  the  management  of  a  railroad  is  intrusted  are  bound 
to  exercise  the  strictest  vigilance.  They  must  carry  the  passengers  to 
their  respective  places  of  destination,  and  set  them  down  safely  if 
human  care  and  foresight  can  do  it.  They  are  responsible  for  every 
injui'y  caused  by  defects  in  the  road,  the  cars,  or  the  engines,  or  bj'^  any 
species  of  negligence,  however  slight,  which  they  or  their  agents  may  be 
guilty  of.  But  they  are  answerable  only  for  the  direct  and  immediate 
consequences  of  errors  committed  by  themselves.  They  are  not  insur- 
ers against  the  perils  to  which  a  passenger  may  expose  himself  by  his- 
own  rashness  or  folly.  One  who  inflicts  a  wound  upon  his  own  body 
must  abide  the  suffering  and  the  loss,  whether  he  does  it  in  or  out  of  a 
railroad  car.  It  has  been  a  rule  of  law  from  time  immemorial,  and  is 
not  likely  to  be  changed  in  all  time  to  come,  that  there  can  be  no  recov- 
ery for  an  injury  caused  by  the  mutual  default  of  both  parties.  When 
it  can  be  shown  that  it  would  not  have  happened  except  for  the  culpable 
negligence  of  the  party  injured  concurring  with  that  of  the  other  party, 
no  action  can  be  maintained.  A  railroad  company  is  not  liable  to  a  pas- 
senger for  an  accident  which  the  passenger  might  have  prevented  by 
ordinary  attention  to  his  own  safety,  even  though  the  agents  in  charge 
of  the  train  are  also  remiss  in  their  duty. 

From  these  principles  it  follows  very  clearly  that  if  a  passenger  is 
negligently  carried  beyond  the  station  where  he  intended  to  stop,  and 
where  he  had  a  right  to  be  let  off,  he  can  recover  compensation  for  the 
inconvenience,  the  loss  of  time,  and  the  labor  of  travelling  back,, 
because  these  are  the  direct  consequences  of  the  wrong  done  to  him. 
But  if  he  is  foolhardy  enough  to  jump  off  without  waiting  for  the  train 
to  stop,  he  does  it  at  his  own  risk,  because  this  is  gross  imprudence,  for 
which  he  can  blame  nobody  but  himself.  If  there  be  any  man  who  does 
not  know  that  such  leaps  are  extremely  dangerous,  especially  when 
taken  in  the  dark,  his  friends  should  see  that  he  does  not  travel  by  rail- 
road. 

It  is  true  that  a  person  is  not  chargeable  with  neglect  of  his  own  safety 
when  he  exposes  himself  to  one  danger  by  trying  to  avoid  another.  In 
such  a  case,  the  author  of  the  original  peril  is  answerable  for  all  that 
follows.  On  this  principle  we  decided  last  year  at  Pittsluu-gh,  that  the 
owners  of  a  steamboat  which  was  endangered  by  a  pile  of  iron  wrong- 
fully left  on  the  wharf,  and  to  get  clear  of  it  was  backed  out  into  the 


LEAPING    FROM    TRAIN    WHILE    IN    MOTION.  255 

Supreme  Court  of  Pennsylvania. 

stream,  where  she  was  struck  by  a  coal-boat  and  sunk,  had  a  good 
cause  of  action  against  the  city  corporation,  whose  duty  it  was  to  have 
removed  the  iron.  If,  therefore,  a  pei'son  should  leap  from  the  car 
under  the  influence  of  a  well-grounded  fear  that  a  fatal  collision  is 
about  to  take  place,  his  claim  against  the  company  for  the  injury  he 
may  suffer  will  be  as  good  as  if  the  same  mischief  had  been  done  by  the 
apprehended  collision  itself.  When  the  negligence  of  the  agents  puts  a 
passenger  in  such  a  situation  that  the  danger  of  remaining  on  the  car  is 
apparently  as  great  as  would  be  encountered  in  jumping  off,  the  right  to 
compensation  is  not  lost  by  doing  the  latter ;  and  this  rule  holds  good 
even  where  the  event  has  shown  that  he  might  have  remained  inside 
with  more  safety.  Such  was  the  decision  in  Stokes  v.  Saltonstall,^  so 
much  relied  on  by  the  defendant  in  error.  A  passenger  in  a  stage-coach, 
seeing  the  driver  drunk,  the  horses  mismanaged,  and  the  coach  about  to 
upset,  jumped  out  and  was  thereby  much  hurt.  The  court  held  the 
proprietors  of  the  line  responsible,  because  the  misconduct  of  their  ser- 
vant had  reduced  the  passenger  to  the  alternative  of  a  dangerous  leap 
or  remaining  at  great  peril.  But  did  the  plaintiff  in  the  present  case 
suffer  the  injury  he  complains  of  by  attempting  to  avoid  another  with 
which  he  was  threatened  ?  Certainly  not ;  he  was  in  no  possible  danger 
of  any  thing  worse  than  being  carried  on  to  a  place  where  he  did  not 
choose  to  go.  That  might  have  been  inconvenient ;  but  to  save  himself 
from  a  mere  inconvenience  by  an  act  which  put  his  life  in  jeopardy,  was 
inexcusable  rashness. 

Thus  far  I  have  considered  the  case  without  reference  to  certain  facts 
disclosed  in  the  evidence  which  tend  to  diminish  the  culpability  of  the 
defendants'  agents,  while  they  aggravate  (if  any  thing  can  aggravate) 
the  folly  of  the  plaintiff.  "When  he  was  about  to  jump,  the  conduc- 
tor and  the  brakeman  entreated  him  not  to  do  it,  warned  him  of  the 
danger,  and  assured  him  that  the  train  should  be  stopped  and  backed  to 
the  station.  If  he  had  heeded  them,  he  would  have  been  safely  let 
down  at  the  place  he  desired  to  stop  at,  in  less  than  a  minute  and  a  half. 
Instead  of  this,  he  took  a  leap  which  promised  him  nothing  but  death ; 
for  it  was  made  in  the  darkness  of  midnight,  against  a  wood-pile  close  to 
tlie  track,  and  from  a  car  going  probably  at  the  full  rate  of  ten  miles  an 
hour. 

Though  these  facts  were  uncontradicted,  and  though  the  court  ex- 
pressed the  opinion  that  no  injury  would  have  happened  to  the  plaintiff 
but  for  his  own  imprudence,  the  jury  were  nevertheless  instructed  that 

1  13  Pet.  181,  ante,  p.  183. 


25(5  CONTKIBLTOUY    NEGLIGKNCE    OF    THE    PASSENGER. 

Railroad  Company  v.  Aspell. 

the  defendants  were  bound  to  compensate  him  in  damages.  The  learned 
judge  held  that  the  cases  of  mutual  neglect  did  not  apply,  because  this 
action  was  on  a  contract.  Now,  a  party  who  violates  a  contract  is  not 
liable,  any  more  than  one  who  commits  a  tort,  for  damages  which  do  not 
necessarily  or  immediately  result  from  his  own  act  or  omission.  In 
neither  case  is  he  answerable  for  the  evil  consequences  which  may  be 
superadded  by  the  default,  negligence,  or  indiscretion  of  the  injured 
party.  There  is  no  form  of  action  known  to  the  law  (and  the  wit  of 
man  cannot  invent  one)  in  which  the  plaintiff  will  be  allowed  to  recover 
for  an  act  not  done  or  caused  by  the  defendant,  but  by  himself. 

When  the  train  approached  Morgan's  Corner,  some  one  (probably 
the  conductor)  announced  it.  Much  stress  was  laid  on  this  fact.  The 
court  said,  in  substance,  that  to  make  such  an  announcement  before  the 
train  actually  stopped  was  a  want  of  diligence,  whereby  the  plaintiff  was 
thrown  into  a  position  of  danger;  and  though  he  was  warned  not  to 
jump,  j'et,  having  done  so,  he  could  make  the  company  pay  him  for  the 
hurt  he  received.  We  think  this  totally  wrong.  It  is  not  carelessness 
in  a  conductor  to  notify  passengers  of  their  approach  to  the  station  at 
which  they  mean  to  get  off,  so  that  they  may  prepare  to  leave  with  as 
little  delay  as  possible  when  the  train  stops.  And  we  cannot  see  why 
such  a  notice  should  put  any  man  of  common  discretion  in  peril.  It  is 
scarcely  possible  that  the  plaintiff  could  have  understood  the  mere 
announcement  of  Morgan's  Corner  as  an  order  that  he  should  leap, 
without  waiting  for  a  halt.  If  he  did  make  that  absurd  mistake, 
it  was  amply  corrected  by  the  earnest  warnings  wliieh  he  afterwards 
received. 

The  remark  of  the  court  that  life  and  limb  should  not  be  weighed 
against  time,  is  most  true  ;  and  the  plaintiff  should  have  thought  of  it 
when  he  set  his  own  life  on  the  hazard  of  such  a  leap,  for  the  sake  of 
getting  to  the  ground  a  few  seconds  earlier.  Locomotives  are  not  the 
only  things  that  may  go  off  too  fast ;  and  railroad  accidents  are  not 
alwa3's  produced  by  the  misconduct  of  agents.  A  large  proportion  of 
them  is  caused  by  the  recklessness  of  passengers.  This  is  a  great  evil, 
which  we  would  not  willingly  encourage  by  allowing  a  premium  on  it  to 
be  extorted  from  companies.  However  bad  the  behavior  of  those  com- 
panies may  sometimes  be,  it  would  not  be  corrected  by  making  them 
pay  for  faults  not  their  own. 

The  court  should  have  instructed  the  jury  that  the  evidence  taken 
altogether  (or  even  excluding  that  for  the  defence),  left  the  plaintiff 
without  the  shade  of  a  case. 

Judgment  reversed  and  venire  facias  de  novo  aivarded. 


GENERAL    DOCTRINES.  25 7 


Riding  iu  Unautliorized  Manner. 


NOTES. 

§  1 .  General  Doctrines.  —  We  have  printed  at  the  head  of  this  chapter  the  case 
of  Morrissey  v.  The  Wiggins  Ferry  Company ^  because  it  embraces  a  general  state- 
ment of  a  leading  doctrine  of  the  courts  touching  the  subject  of  contributory 
negligence,  and  an  attempt  to  apply  that  doctrine  to  a  case  of  the  death  of  a  pas- 
senger through  the  negligence  of  the  carrier.  The  rule  there  laid  down  originated 
in  the  case  of  Davies  v.  Mann,^  decided  in  Ibe  English  Court  of  Exchequer  in  the 
year  1842.  The  doctrine  of  this  case  has  probably  been  more  frequently  cited,^ 
less  clearly  understood,  and  more  generally  misapplied  than  any  case  relating  to 
the  subject.'  It  is  subject  to  the  objection  that  in  cases  of  mutual  and  concur- 
ring negligence  it  compels  one  party  to  pay  all  the  damages,  although  the  accident 
was  the  product  of  the  fault  of  both  parties.  It  can  never  be  applied  without 
producing  injustice,  unless  with  one  or  the  other  of  the  following  qualifications : 
1.  The  defendant  is  not  to  be  compelled  to  pay  damages  where  there  was  negli- 
gence of  the  plaintiff  contributing  to  the  injury,  unless  the  defendant  knew  of  the 
negligence  of  the  plaintiff  in  time  to  have  saved  the  plaintiff  from  the  injurious 
consequences  of  it;  or,  2.  The  jury  should  look  to  the  negligence  of  the 
plaintiff  in  mitigation  of  damages.  A  fcAV  of  the  courts  have  adopted  the  first 
qualification  of  the  doctrine.*  The  second  qualification  is  almost  universally 
denied  by  the  courts.^  But  without  reference  to  the  state  of  the  law  on  the  sub- 
ject, it  is  believed  that  the  doctrine  of  Davies  v.  Mann,^  reiterated  in  3Iorrissey 
v.  Wiggins  Ferry  Company,''  cannot,  as  a  general  rule,  be  usefully  applied  to  cases 
of  injuries  to  passengers  by  the  negligence  of  carriers.  The  doctrine  there  laid 
down  is  generally  applied  to  cases  of  collisions  of  vessels  at  sea,  collisions  of 
travellers  on  the  highway,  and  collisions  between  travellers  and  railway  trains. 

§  2.  Riding  in  an  Unauthorized  Manner. —  (1.)  Arm  out  of  Window.  —  It  is 
frequently  stated  as  a  proposition  of  law  that  if  the  passenger  allows  any  por- 
tion of  his  body  to  extend  beyond  the  base  of  an  open  car-window  while  tht- 
train  is  in  motion,  such  conduct  is  negligence  per  se,  which  disentitles  the  plain- 
tiff to  recover  for  any  injuries  received  in  consequence  of  coming  in  contact  with 
any  obstruction  outside.*  The  reasons  for  this  rule  are  nowhere  better  stated 
than  in  the  language  of  Thompson,  C.  J.,  in  Pittsburgh,  etc.,  Bailroad  Company  v. 
McClurg:^  "A  passenger,  on  entering  a  railroad  car,  is  presumed  to  know  the  use 
of  the  seat  and  the  use  of  a  window :  that  the  former  is  to  sit  in,  and  the  latter 
is  to  admit  light  and  air.  Each  has  its  separate  use.  The  seat  he  may  occupy 
in  any  way  most  comfortable  to  hl.aself.    The  window  he  has  a  right  to  enjoy, 

»  10  Mee.  &  W.  545 ;  «.  c.  2  Thomp.  on  Neg.  '  Ante,  p.  243. 

p.  1105.  8  Todd  V.  Old  Colony  etc.  R.  Co.,  3  Allen, 

2  For  subsequent  citations  of  this  case  18;  ».  c.  7  Allen,  207;  Pittsburgh  etc.  R.  Co. 
see  the  table  of  cases  of  this  work.  v.  Andrews,  39  Md.  329;  Indianapolis  etc.  R. 

3  See  an  examination  of  this  case  in  2  Co.  r.  Rutherford,  29  Ind.  82;  Morel  v.  Mis- 
Thomp.  on  Neg.,  p.  11.55.  sissippi  Ins.  Co.,  4  Bush,  535 ;  Pittsburgh  etc. 

<  2  Thomp.  on    Neg  ,  pp.  ll.'jG,  1157,   and  R.  Co.  v.  McClurg,  56  Pa.  St.  294;  Louisville 

citations.  '■>  Id.,  pp.  1146,  1162.  etc.  R.  Co.  v.  Sickings,  5  Bush,  1;  Holbrook 

6  10  Mee.  ftW.  545;  «.  c.  2  Thomp.  on  Neg.,  v.  Uticu  etc.  R.  Co.,  12  N.  Y.  236. 
p.  1105.  9  56  Pa.  St.  294. 

17 


258  CONTRIBUTORY   NEGLIGENCE   OF   THE   PASSENGER. 


Notes. 


but  not  to  occupy.  Its  use  is  for  the  benefit  of  all,  —  not  for  the  comfort  alone 
of  him  who  has  by  accident  got  nearest  to  it.  If,  thei-efore,  he  sit  with  his  elbow 
in  it,  he  does  so  without  authority;  and  if  he  allow  it  to  protrude  out,  and  is 
injured,  is  this  due  care  on  his  part?  He  was  not  put  there  by  the  carrier,  nor 
invited  to  go  there,  nor  misled  in  regard  to  the  fact  that  it  was  not  a  part  of 
the  seat,  nor  that  its  purposes  were  not  exclusively  to  admit  light  and  air  for  the 
benefit  of  all.  His  position  is  therefore  witliouf  authority.  His  negligence  con- 
sists in  putting  his  limbs  where  they  ought  not  to  be,  and  liable  to  be  broken, 
without  his  ability  to  know  whether  liiere  is  danger  or  not  approaching.  In  a 
case,  therefore,  where  the  injury  stands  confessed,  or  is  proved  to  have  resulted 
from  the  position  voluntarily  or  thoughtlessly  taken  in  a  window,  by  contact 
with  outside  obstacles  or  forces,  it  cannot  be  otherwise  characterized  than  as 
negligence,  and  so  to  be  pronounced  by  the  court."  ^ 

On  the  contrary,  the  judgment  of  Cole,  J.,  in  Spencer  v.  Milwaukee,  etc.  Rail- 
road Company '^  forcibly  expresses  views  which  would  seem  to  demonstrate  that 
the  question  of  negligence  in  cases  of  this  character  may  ordinarily  be  properly 
submitted  to  the  jury.  He  said :  "  It  is  probably  the  habit  of  every  person,  while 
riding  in  the  cars,  to  rest  the  arm  upon  the  base  of  the  window.  If  the  window 
is  open,  it  is  likely  to  extend  slightly  outside.  This,  we  suppose,  is  a  common 
habit.  There  is  always  more  or  less  space  between  the  outside  of  the  car  and 
any  structure  erected  by  the  side  of  the  track,  and  must  necessarily  be  so  to 
accommodate  the  motion  of  the  car.  Passengers  know  this,  and  must  regulate 
their  conduct  accordingly.  They  do  not  suppose  that  the  agents  and  managers 
of  the  road  suffer  obstacles  to  be  so  placed  as  barely  to  miss  the  car  while  pass- 
ing. And  it  seems  to  us  almost  absui'd  to  hold  that  in  every  case,  and  under  all 
circumstances,  if  the  party  injured  had  his  arm  the  smallest  fraction  of  an  inch 
beyond  the  outside  surface,  he  was  wanting  in  ordinary  care  and  prudence.  Of 
course,  a  case  might  be  supposed  where  carelessness  would  be  clearly  apparent 
from  the  circumstances.  If  a  passenger  should  ride  with  his  body  lialf  out  of 
the  car,  or  with  his  arms  or  his  feet  so  protruded  that  they  would  inevitably 
expose  him  to  danger  and  collision,  we  should  have  no  hesitation  in  saying  he 
was  utterly  reckless." 

The  foregoing  remarks  present  a  reasonable  view  of  this  question.  Passen- 
gers cannot  be  expected  to  sit  bolt  upright  for  a  succession  of  days  or  hours,  nor 
do  they.  The  frames  of  men  are  not  of  cast-iron,  and  no  rule  of  law  should  be 
predicated  upon  the  contrary  supposition.  It  is  perhaps  not  too  strong  a  state- 
ment that  no  person  ever  travelled  upon  a  railway  train  without  at  some  time 
resting  his  arm  upon  the  window-sill  at  least,  if  not  permitting  it  to  protrude 
slightly.  Conduct  which  is  universal  is  necessarily  that  of  persons  reasonably 
prudent.  As  pointed  out  by  the  learned  judge  last  mentioned,  it  is  easy  to  dis- 
tinguish between  conduct  in  this  particular  which  is  so  imprudent  as  to  leave 
no  room  for  speculation  as  to  negligence,  and  that  which  may  properly  be  sub- 
mitted to  the  consideration  of  the  jury. 

1  The  court  in  this  case  expressly  over-  ger's  extended  arm  was  broken  by  coming 

ruled  ctie  earlier  case  of  New  Jersey  etc.  R.  in  contact  with  a  bridge,  the  carrier  would 

Co.  V.  Kennard,  21  Pa.  St.  203,  establishing  not  be  responsible  for  the  injury  if  he  gave 

the  contraiy  principle.    In  Laing  v.  Colder,  timely  notice  of  the  danger,  which  the  plain- 

8  Pa.  St.  179,  it  was  held  that  if  the  passen-  tiff  might  have  avoided.  -  17  Wis.  487. 


RIDING    IN    UNAUTHORIZED    MANNER.  259 


Upon  the  Platform  of  the  Car. 

The  Supreme  Court  of  Wisconsin  does  not  stand  alone  in  this  position.  In 
Chicago^  etc.  Bailroad  Company  v.  Pondrom,^  it  was  held  (under  the  rule  of  com- 
parative negligence  prevailing  in  Illinois)  that  where  a  passenger's  arm  slightly 
projected  outside  the  window,  and  was  broken  in  passing  a  freight-train,  the  neg- 
ligence of  such  person  was  slight,  compared  with  the  negligence  of  the  railroad 
company  in  permitting  its  freight-cars  to  stand  so  near  the  track  of  its  passen- 
ger-train, and  a  recovery  might  be  had  for  the  injury  sustained.^ 

(2.)  Upon  the  Car  Platform.  —  Although  it  is  the  duty  of  the  passenger  to 
occupy  a  seat  inside  of  the  car  when  any  are  to  be  obtained,  yet,  as  a  general 
rule,  the  presence  of  the  passenger  upon  the  platform  when  the  car  is  in  motion 
is  not  at  all  times  unjustifiable.  It  may  be  that  proper  provision  is  not  made 
for  his  accommodation  inside,  or  that  he  is  riding  upon  the  platform  by  the 
direction  or  consent  of  the  company's  servants.  Thus,  in  Willis  v.  Long  Island 
Railroad  Company,^  the  plaintiff,  with  others,  was  forced  to  take  a  position  on  the 
platform  of  the  car,  on  account  of  all  the  seats  being  taken  and  the  passage-way 
in  the  car  being  occupied  by  other  passengers.  The  conductor  received  his  fare, 
and  did  not  inform  him  that  there  were  vacant  seats  in  other  cars  of  the  train. 
A  collision  took  place  between  this  train  and  another,  and  the  plaintiff  was 
injured.  The  Court  of  Appeals,  affirming  the  decision  of  the  Supreme  Court, 
held  that  the  position  of  the  plaintiff  did  not  of  itself,  independent  of  the  stat- 
ute in  New  Yoi'k  on  this  subject,*  bar  his  recovery  of  damages  for  his  injuries. 
Porter,  J.,  said:  "There  is  no  rule  of  the  common  law  which  makes  it  the 
duty  of  the  passenger  to  select  a  position  in  the  vehicle  least  exposed  to  danger 
through  the  wrongful  act  of  the  proprietor,  A  seat  on  the  outside  of  a  stage- 
coach may  be  more  hazardous  than  an  inside  seat,  if  the  driver  negligently  over- 
turns it  on  a  pavement  or  a  hillside ;  but  the  selection  of  that  position  is  neither 
negligence  per  se,  nor  tributary  to  it."  ^  Smith,  J.,  in  commenting  on  the  stat- 
ute which  enacts  that  a  railroad  company  shall  not  be  liable  to  passengers  for 
injuries  received  while  standing  on  the  platform,  provided  it  "  furnished  room 
inside  its  passenger-cars  sufficient  for  proper  accommodations  of  the  passen- 
gers," stated  that  the  language  meant  a  seat  for  each  passenger,  and  not  merely 
standing-room  in  the  passage-way.  It  meant  also  a  vacant  seat,  and  not  one 
occupied  by  another  passenger,  either  with  his  person  or  his  luggage,  although  so 
occupied  improperly.  A  seat  should  be  furnished  by  the  company.^  It  was  not 
the  duty  of  the  passenger,  at  the  risk  of  trespassing  on  the  rights  of  another,  or 
engaging  in  a  personal  controversy,  to  compel  another  to  yield  a  portion  of  the 
seat  so  occupied.  Although  there  were  vacant  seats  in  other  parts  of  the  train 
the  plaintiff  was  not  obliged  to  incur  the  peril  of  passing  from  one  car  to 
another  while  the  train  was  in  motion.  Neither  was  it  incumbent  upon  him  to 
crowd  himself  into  the  passage-way  of  the  car.  "That  part  of  the  car  is 
just  what  its  name  indicates,  —  a  way  through  the  car.     Each  passenger  seated 

1  51  111.  333.  6  Mo.  App.  471 ;  s.  c.  6  Cent.  L.  J.  335;  Seigel 

2  See  also  Winters  v.  Hannibal  etc.  R.  Co.,       v.  Eisen,  41  Cal.  109. 

39  Mo.  468;  Barton  v.  St.  Louis  etc.  R.  Co.,  52  a  32  Barb.  399;  s.  c.  34  N.  Y.  670. 

Mo.  253.   It  is  not  negligence  per  se  for  a  pas-  *  Laws  1850,  chap.  140,  §  46;  3  Edm.  Stats. 

senger  to  expo.«e  his  hand  or  arm  outside  of       at  Large,  036,  §  46. 

a  street  car.    Miller  v.  St.  Louis  etc.  R.  Co.,  •'  Sec  Keith  r.  Pinkhain,  43  Me.  501. 

<>  See  also  Davis  v.  Kailroad  Co.,  53  Mo.  317. 


260  CONTRIBUTORY    NEGLIGENCE    OF    THE    PASSENGER. 


Notes. 


in  the  car  has  a  right  to  pass  along  the  way  at  any  and  all  times,  and  he  there- 
fore has  a  right  to  insist  that  it  shall  be  at  all  times  open  and  unobstructed. 
The  company  cannot  rightfully  compel  a  passenger  to  stand  in  it,  instead  of  fur- 
nishing him  with  a  seat ;  and  even  if  he  consents  to  do  so,  they  have  no  right  to 
place  him  there  as  against  the  passengers  who  are  seated."  ^ 

The  foregoing  case  undoubtedly  puts  this  matter  in  the  most  favorable  light 
possible  for  the  passenger.  It  is  also  held  in  other  cases  that  the  presence  of 
the  passenger  upon  the  platform  when  the  train  is  in  motion  is  not  per  se  negli- 
gence .'■' 

The  statute  in  New  York,  previously  noticed,  is  regarded  as  penal  in  its  nature, 
and  therefore  is  strictly  construed.  It  provides  that  a  person  injured  while  stand- 
ing on  the  platform  of  a  car  cannot  sustain  an  action  for  the  injury,  provided 
a  notice  is  posted  inside  the  car  forbidding  passengers  to  take  such  a  position, 
and  there  is  room  inside  of  the  car.  This  does  not  prevent  a  recovery  by  a 
passenger  injured  while  standing  on  the  platform,  where  the  car  is  full  inside, 
and  the  only  notice  not  to  occupy  the  platform  is  posted  outside  of  the  car,  and 
is  not  shown  to  have  come  to  such  passenger's  knowledge.* 

In  some  States  a  less  favorable  view  is  taken  of  the  passenger's  position,  in 
cases  of  this  character.  Thus,  in  Hickey  v.  Boston,  etc.  Bailroad  Company, ^^  the 
Supreme  Judicial  Court  of  Massachusetts  laid  down  the  general  rule  that  a  pas- 
senger cannot  recover  damages  for  a  personal  injury  sustained  by  him  in  conse- 
quence of  his  voluntarily  and  unnecessarily  standing  upon  the  platform  of  a 
passenger-car  while  the  train  is  in  motion.  The  facts  of  this  case  were,  that  it 
was  the  custom  of  the  train-meu  to  uncouple  the  engine  and  smoking-car  from 
the  rest  of  a  passenger-train  on  approaching  a  certain  station,  so  that  the  former 
might  be  switched  off  on  a  side  track  and  the  remainder  of  the  train  run  slowly 
upon  the  main  track  to  the  station.  Passengers  in  the  smoking-car  were  accus- 
tomed to  pass  from  thence  to  the  platform  of  the  first  passenger-car,  just  before 
the  uncoupling,  and  remain  there  until  the  train  reached  the  station.  This  was 
done  by  the  express  permission  of  the  conductor  and  brakemen,  and  without 
objection  from  the  superintendent  and  directors,  who  knew  of  the  practice.  On 
one  occasion  the  engine  and  smoking-car  ran  off  upon  the  wrong  track,  in  conse- 
quence of  the  displacement  of  a  switch,  and  part  of  the  smoking-car  was  thrown 
across  the  main  track.  The  remainder  of  the  train,  following  upon  the  main 
track,  came  into  collision  with  this  obstruction,  and  the  plaintiff's  husband,  who 
was  riding  upon  the  front  platform  of  the  first  car,  was  fatally  injured.  The 
court  held  that  the  express  permission  of  the  managers  of  the  train,  and  the 
implied  assent  of  the  oflicers  of  the  corporation  to  the  passenger  occupying  this 
position,  did  not  change  the  relations  between  the  parties,  nor  their  several 
obligations.  Because  the  passenger  rightfully  occupied  the  position  in  question, 
it  did  not  follow  that  it  was  at  the  risk  of  the  corporation.  If  suflicient  and 
suitable  provision  were  made  within  the  cars  for  all  passengers,  the  managers  of 
the  train  were  under  no  obligation  to  restrict  them  to  their  proper  places,  nor  to 

1  34  N.  Y.  682.  657;  s.  c.  36  N.  Y.  135.    See  also  Colegrove  v. 

2  Zemp  V.  Wilmington  etc.  R.  Co.,  9  Rich.  New  York  etc.  R.  Co.,  6  Duer,  382;  s.  c.  20  N. 
L.  84;  Lafayette  etc.  R.  Co.  v.  Sims,  27  Ind.  Y.  492;  Carroll  v.  New  York  etc.  R.  Co.,  1 
59;  Macon  etc.  R.  Co.  v.  Johnson,  38  Ga.  409.  Duer,  571,  579. 


3  Clark  V.  Eighth  Avenue  R.  Co.,  32  Barb.  ■•  14  Allen,  429. 


RIDING    IN    UNAUTHORIZED    MANNER.  261 


Upon  the  Platform  of  the  Car. 


prevent  them  from  acts  of  imprudence.  Very  much  the  same  view  was  taken  by 
the  Supi-eme  Court  of  Illinois  in  Quinn  v.  Illinois,  etc.  Railroad  Company.'^  The 
plaintiff's  husband  voluntarily  placed  himself,  with  several  others,  upon  the  plat- 
form and  steps  of  the  car,  when  there  was  abundant  standing-room  inside,  though 
the  seats  were  all  full,  and,  in  an  endeavor  to  recover  a  bank-bill  which  was  blown 
away  while  passing  from  the  hand  of  the  conductor  to  that  of  the  passenger,  fell 
against  an  embankment,  and  was  thrown  back  under  the  cars  and  killed.  The 
court  held  that  the  death  of  the  passenger  could  be  attributed  only  to  his  own 
recklessness.^ 

Special  circumstances  may  make  it  necessary  for  a  passenger  to  stand  upon 
the  platform,  and  thereby  excuse  what  would  otherwise  be  negligent  conduct. 
Thus,  where  the  plaintiff,  in  the  performance  of  his  duty  as  a  guard  over  prL^on- 
ers,  was  required  to  stand  at  the  door  of  a  car,  it  was  held  that  he  was  not  in 
fault  for  so  doing. ^ 

It  is  almost  needless  to  add,  that  if  a  passenger,  seeing  a  collision  of  trains  to 
be  inevitable,  rushes  to  the  door  of  the  car  in  which  he  is  riding,  with  the  inten- 
tion of  jumping  off  the  train,  and  is  caught  and  injured  while  upon  the  platform, 
the  ordinary  inhibition  against  riding  upon  the  platform  has  no  application  to  his 
case.*  One  cannot  through  his  default  put  another  in  peril,  and  then  demand 
that  he  shall  exercise  the  highest  degree  of  prudence  in  extricating  himself.^ 

In  the  absence  of  a  statute  upon  this  subject,  it  is  evident  that  the  position  of 
a  passenger  on  the  platform  of  a  street  car  is  not  subject  to  the  same  rule  as  that 
of  a  passenger  on  the  platform  of  a  steam-railroad  car.  The  cars  of  the  former 
do  not  run  at  the  same  speed,  are  not  attended  with  the  same  danger,  as  those  of 
the  latter,  and  the  rules  applicable  to  one  seldom  are  to  the  other.*  Therefore  it 
is  held  that  riding  upon  the  outside  platform  of  a  street-railroad  car  is  not  such 
a  want  of  ordinary  care  as  to  prevent  a  recovery  for  an  injury  sustained  by  being 
thrown  therefrom,''  even  though  there  is  room  inside.^  In  Spooner  v.  Brooklyn 
City  Bailroad  Company,^  the  plaintiff  was  a  passenger  upon  a  stage-sleigh  run 
by  the  defendant.  The  sleigh  was  provided  with  wide  foot-boards  or  guards  on 
the  sides,  upon  which  passengers  usually  rode  when  the  seats  were  occupied. 
Hand-rails  were  placed  on  the  ends  of  the  seats,  for  the  convenience  of  those 
standing  on  the  foot-boards.     Passengers  were  received  to  ride  there,  and  their 

1  51  111.  495.  in  compelling  a  lad  who  had  paid  his  fare  to 

2  See  also  Higgins  v.  Harlem  etc.  R.  Co.,  2  give  up  his  seat  and  stanil  upon  the  front 
Bosw.  132.  Compare  Clark  v.  Eighth  Avenue  platform,  has  been  held  sufficient  to  absolve 
K.  Co.,  36  N.  Y.  135.  this  passenger  from  the  imputation  of  negli- 

3  Truex  v.  Erie  R.  Co.,  4  Lans.  198.  gence  in  this  particular.    The  company  was 
■•  Buel  V.  New  York  etc.  R.  Co.,  31  N.  Y.       therefore  res|)onsible  for  his  death,  caused 

314.    But  see  Collins  v.  Albany  etc.  R.  Co.,  12  by  being  thrown  from  the  car  by  the  hasty 

Barb.  492.  and  careless  departure  of  another  passen- 

'■'  Jones  V.  Boyce,  ante,  p.  246;  Ingalls  v.  ger.    Sheridan  v.  Brooklyn  City  etc.  R.  Co., 

Bills,  on<e,  p.  112;  Stokes  t;.  Saltonstall,  an<e,  36  N.  Y.  39. 
|).  183.  **  Maguire  v.  Middlesex  R.  Co.,  115  Mass. 

''  Lynam  v.  Union  R.  Co.,  114  Mass.  83;  239;   Burns  v.  Bellefontaine  R.  Co.,  50  Mo. 

Miller  V.  St.  Louis  etc.  R.  Co.,  5  Mo.  App.  139.    But  see  Baltimore  R.  Co.  r.  Wilkinson, 

471 ;  ».  c.  6  Cent.  L.  J.  335.  30  Md.  224;  Ward  v.  Central  Park  R.  Co.,  11 

'  Meesel  v.  Lynn  etc.  R.  Co.,  8  Allen,  234;  Abb.  Pr.  (n.  s.)  411. 
Augusta  etc.  R.  Co.  v.  Renz,  .55  Ga.  126.    The  '•'  54  N.  Y.  230   (reversing  ».  c.  31    Barb. 

..ut  of  the  conductor  of  a  street -railroad  car  419). 


262  CONTRIBUTORY    NEGLIGENCE    OF    THE    PASSENGER. 


Notes. 


fares  collected  without  objection.  No  seat  being  accessible  to  the  plaintiff,  he 
rode  in  this  manner,  and  was  injured  by  a  collision  Avith  another  sleigh.  It  wa-; 
held  that  his  conduct  was  not  negligent  per  se,  but  whether  it  was  negligent  was 
proper  to  be  considered  by  the  jury. 

(3.)  In  the  Baggage-Gar.  —  It  is  no  doubt  a  reasonable  regulation  that  passen- 
gers shall  not  ride  in  the  baggage-car.  The  safety  of  the  passenger,  the  unim- 
peded discharge  of  duty  by  tlie  company's  servants,  and  the  security  of  property 
are  considerations  in  support  of  this  rule.  All  passengers  are  probably  awaro 
that  the  hazards  of  travel  are  increased  by  riding  in  this  portion  of  the  train. 
But  if  they  choose  to  ride  there,  and  do  so  with  the  knowledge  of,  and  without 
objection  on  the  part  of,  the  conductor  of  the  train,  the  company  cannot  take 
advantage  of  their  regulation  in  this  particular  to  charge  the  passenger  with  neg- 
ligence. The  conductor  is  vested  with  discretion  in  the  discharge  of  his  duties, 
and  the  company  is  responsible  for  the  exercise  of  it.'  The  language  of  Bos- 
worth,  J.,  in  an  important  case,*  on  this  subject,  fully  explains  the  relations  of 
passenger  and  carrier  in  cases  of  this  kind:  "  He  took  a  seat  in  the  post-office 
department  of  the  baggage-car.  The  position  was  injudiciously  chosen,  and  may 
be  assumed  to  have  been  known  to  him  to  have  been  a  far  more  dangerous  one 
than  a  seat  in  a  passenger-car.  But  he  took  it  with  the  assent  of  the  conductor. 
He  was  not  there  as  a  trespasser,  or  wrongfully,  as  between  him  an  J  the  defend- 
ants. So  far  as  all  questions  involved  in  the  decision  of  this  action  are  con- 
cerned, he  was  lawfully  there.  His  being  there  was  not  such  negligence,  in  the 
legal  sense  of  the  term,  as  exonerates  the  defendants  from  the  consequences  of 
injuring  him  by  such  culpable  negligence  as  consists  in  running  two  trains  of 
their  cars  so  violently  into  each  other  as  to  entirely  demolish  the  car  in  which  he 
was  sitting."* 

Even  though  the  passenger  is  duly  informed  of  a  regulation  excluding  passen- 
gers from  the  baggage-car,  yet  if  he  is  suffered  to  remain  there  he  does  not  do 
so  at  his  peril ;  the  company  is  still  under  the  obligation  to  exercise  the  highest 
care  for  his  safety.* 

In  many  of  the  States  it  is  provided  by  statute,  as  in  New  York,  that  "  in  case 
any  passenger  on  any  railroad  shall  be  injured  while  ou  the  platform  of  a  car, 
or  on  any  baggage,  wood,  or  freight  car,  in  violation  of  the*  printed  regulations 
of  the  company,  posted  up  at  the  time  in  a  conspicuous  place  inside  of  its  pas- 
senger-cars then  in  the  train,  such  company  shall  not  be  liable  for  the  injury; 
provided  such  company  at  the  time  furnished  room  inside  its  passeuger-cars 
sufficient  for  the  proper  accommodation  of  passengers."^  The  company  must 
strictly  comply  with  the  terms  of  this  statute  in  order  to  secure  its  benefit  ;^  but 

1  O'Donnell  v.  AJlegheny  etc.  R.  Co.,  59  "It  is  not  enough  for  the  plaintiff  to  show 
Pa.  St.  239;  Watson  t?.  Northern  R.  Co.,  24  that  Hickey  was  rightfully  upon  the  plat- 
Upper  Canada  Q.  B.  98.  form.    Because  he  might  rightfully  occupy 

-  Carroll  v.  New  York  etc.  R.  Co.,  1  Duer,  whatever  place  the  conductor  should  per- 

511.  mit,  it  does  not  follow  that  he  would  do  so  at 

3  Contra  is  the  principle  of  the  decision  of  the  risk  exclusively  of  the  corporation." 

the  Supreme  Judicial  Court  of   Massachu-  ■•  Jacobus  v.  St.  Paul  etc.  R.  Co.,  20  Minn. 

setts  in  Hickey  v.  Boston  etc.  R.  Co.,  U  Al-  125;  s.  c.  1  Cent.  L  J.  375. 

leu,  429.    This  was  the  case  of  a  passenger  ^  Laws  N.  Y.  1850,  chap.  140,  §  46;  3  Edm. 

injured  while  riding  upon  the  platform  of  Stats,  at  Large,  636,  §  46;  Wag.   Mo.  Stats, 

one  of  two  colliding  cars,  with  express  per-  312,  §  45. 

mission  of  the  conductor.    Said  Wells,  J.:  *  Carroll  v.  New  York  etc.  R.  Co.,  1  Duer, 


RIDIXG    IN    UNAUTHORIZED    MANNER.  263 


In  Various  Positions. 


having  done  so,  its  immunity  from  liability  for  injuries  from  "this  source  is 
complete.  1 

(4.)  In  Various  Positions. — The  passenger  is  not,  as  a  matter  of  law,  obliged 
to  remain  in  his  seat  from  the  time  he  first  takes  it  until  the  train  comes  to  a 
final  stop  at  his  destination.^  Therefore  it  is  a  question  for  the  jury  whether  he 
is  lacking  in  reasonable  care  in  leaving  his  seat  and  standing  in  the  passage-way 
of  the  car,  for  the  purpose  of  hastening  his  departure,  after  the  approach  of  the 
train  to  the  station  at  which  he  is  to  alight  has  been  announced ;  ^  or  in  stand- 
ing in  the  aisle  and  making  preparations  to  leave  by  brushing  and  plaiting  a 
child's  hair;  *  or,  having  entered  a  car,  and  finding  no  seats  vacant,  in  continuing 
to  stand,  looking  about  for  a  seat.* 

In  Gee  v.  Metropolitan  Bailway  Company,^  the  passenger  got  up  from  his  seat 
and  put  his  hand  on  the  bar  which  crossed  the  window  of  the  door  of  the  car- 
riage, for  the  purpose  of  looking  out  to  see  the  signal-lights  and  to  show  then; 
to  a  fellow-passenger.  Leaning  forward  a  little  upon  the  door,  it  flew  open,  and 
he  fell  out  and  was  injured.  There  was  no  further  evidence  as  to  the  construc- 
tion of  the  door  and  its  fastenings.  The  jury  having  found  for  the  plaintiff,  leave 
was  reserved  to  enter  a  nonsuit,  on  the  groui.  I  that  there  was  no  evidence  of 
the  defendants'  liability.  It  was  held  by  the  Court  of  Exchequer  Chamber 
(afiirming  th**  decision  of  the  court  below)  that  the  verdict  ought  to  stand. 
Said  CocKBXTRN,  J. :  "  The  passenger  did  nothing  more  than  that  which  came 
within  the  scope  of  his  enjoyment  while  travelling,  without  committing  any 
imprudence.  In  passing  through  a  beautiful  country,  he  certainly  is  at  liberty  to 
stand  up  and  look  at  the  view ;  not  in  a  negligent,  but  in  the  ordinary  manner  of 
people  travelling  for  pleasure."  But  a  passenger  is  not  justified  in  leaving  hi> 
seat  and  incurring  a  known  and  ascertained  danger  for  the  purpose  of  obviating 
a  slight  inconvenience.  Thus,  in  Adams  v.  Lancashire,  etc.  Bailway  Company,' 
the  door  of  the  compartment  of  the  carriage  in  which  the  plaintiff  was  riding 
flew  open  three  times,  and  each  time  the  plaintiff  succeeded  in  shutting  it  without 
accident.  The  weather  was  pleasant.  There  was  room  in  the  carriage  for  the 
plaintiff  to  sit  away  from  the  door,  and  the  train  would  have  stopped  at  a  station 
in  three  minutes.  The  door  opened  a  fourth  time,  and  in  endeavoring  to  shut 
it  again,  the  plaintiff  fell  out  and  was  hurt.  It  was  held  that  he  had  no  right  to 
run  the  risk  of  attempting  to  shut  the  door;  and  although  there  was  evidence  of 
the  defendants'  negligence  from  the  defective  condition  of  the  lock,  yet  the 
injury  suffered  was  not  the  necessary  or  natural  result  of  the  company's  negli- 
gence, and  they  were  not  liable  for  the  injury.* 

571 ;  Clark  v.  Eighth  Avenue  R.  Co.,  32  Barb.  ^  £,.  R.  4  0.  P.  739. 

657;  s.  c.  36  N.  Y.  135;  Colegrove  v.  Harlem  8  jn  Gee    v.  Metropolitan  R.  Co.,  supra, 

etc.  H.  Co.,  6  Duer,  382;  s.  c.  20  N.  Y.  492.  the  princii)le  declared  in  this  case  was  ap- 

•  Iliggins  V.  Hannibal  etc.  R.  Co.,  36  Mo.  proved,    Imt   its    application    to    the   facts 

418.  therein  denied,  by  Mr.  Justice  Keating.    In 

2  Gee  V.  Metropolitan  R.  Co.,  L.  R.  8  Q.  reading  this  case  it  Is  essential  to  bear  in 
B.  161.  mind  the  difference  in  construction  between 

3  Barden  v.  Boston  etc.  R.  Co.,  121  Mass.  railway  coaches  In  this  country  and  the 
426;  8.  c.  16  Am.  L.  Ueg.  664.  passenger  carriages  in  England.    The  doors 

^  Railroad  Co.  v.  Pollard,  22  Wall.  341.  in  the  latter  are  on  the  side  of  the  carriage, 

6  Pollard  V.  X.  Y'.  etc.  R.  Co.,  7  Bosw.  4.37.  opening  outwards,  and  are  regularly  locked 

«  L.  R.  8  Q.  B.  161;  8.  c.  42  L.J.  (Q.  B.)  105;  and  unlocked  by  the  guard  at  the  beginning 

1\  Week.  Rep.  584;  28  L.  T.  (N.  8.)  582.  and  end  of  the  Journey. 


264  CONTRIBUTORY    NEGLIGENCE    OF    THE    PASSENGER. 


Notes. 


A  passenger  cannot  be  said  to  be  in  tlie  exercise  of  due  care  who  voluntarily 
and  unnecessarily  places  his  hand  upon  the  framework  of  the  door  of  the  car- 
.iage,  so  that  when  the  door  is  closed  it  must  be  inevitably  crushed.  Thus,  in 
Richardson  v.  Metropolitan,  etc.  Bailway  Company,^  a  passenger,  after  getting 
uto  a  carriage  of  a  train  on  the  defendants'  railway,  left  his  thumb  for  the  space 
of  half  a  minute  in  the  door-jamb ;  the  guard,  after  crying  out  to  the  passengers 
to  take  their  places,  shut  the  doors  of  the  carriages,  and,  not  seeing  the  plain- 
iff 's  thumb,  crushed  it  in  so  doing.  The  evidence  demonstrated  that  the  doors 
were  shut  in  the  ordinary  manner,  and  the  accident  was  attributable  only  to  the 
plaintiff's  negligence.  This  case  was  distinguished  from  that  of  FordhaniY. 
London,  etc.  Bailway  Company,"^  where  the  plaintiff,  in  getting  into  the  railway 
carriage,  having  a  parcel  in  his  right  hand,  placed  his  left  hand  on  the  back  of  the 
open  door,  to  aid  him  in  mounting  the  step.  There  was  conflicting  evidence  as  to 
whether  there  was  a  proper  handle  affixed  to  the  carriage,  to  the  right  of  the 
door.  The  night  was  dark,  and  the  plaintiff  did  not  see  any  handle.  Before  he 
had  completely  entered  the  carriage,  the  guard,  without  any  previous  warning, 
closed  the  door,  and  crushed  his  hand  between  the  back  of  the  door  and  the  door- 
post. The  Court  of  Exchequer  Chamber  (affirming  the  decision  of  the  court 
below)  held  that  there  was  evidence  of  negligence  on  the  part  of  the  company's 
servant,  and  no  evidence  of  such  contributory  negligence  on  the  part  of  the 
plaintiff  as  to  entitle  the  defendants  to  a  nonsuit.  So  also,  in  Coleman  v.  Soiith- 
Eastern  Bailway  Company,'^  the  plaintiff,  a  boy  twelve  years  of  age,  in  company 
with  his  father,  had  entered  a  third-class  carriage  at  night,  and,  in  feeling  for  a 
seat,  placed  his  hand  on  the  door-jamb,  which  was  very  near  the  seat.  The 
porter  at  that  moment  violently  closed  the  door,  which  crushed  the  plaintiff 's 
Angers  and  struck  his  father,  who  entered  after  him,  on  the  back.  It  was  held 
that  the  evidence  of  negligence  on  the  part  of  the  porter  was  properly  submitted 
to  the  jury,  and  that  there  was  no  contributory  negligence  on  the  part  of  the 
plaintiff. 

A  case  of  this  character  has  lately  come  before  the  House  of  Lords,*  the  facts  of 
which  were  these :  The  plaintiff  was  a  passenger  on  the  defendants'  railway,  the 
carriage  in  which  he  rode  being  overloaded.  When  the  train  arrived  at  a  certain 
station,  the  door  was  opened  by  people  from  the  outside,  who  endeavored  to  crowd 
their  way  in.  The  plaintiff  voluntarily  rose,  or  partly  rose,  from  liis  seat  to  push 
these  pei'sons  back.  The  train  happened  to  move  on.  The  plaintiff  was  jerked 
forward,  and  put  his  hand  on  the  hinge  of  the  carriage  door  at  the  very  moment 
the  door  was  in  course  of  being  shut  by  the  porter,  in  consequence  of  which  the 
i^laintiff  's  thumb  was  injured.  .  It  was  not  proved  that  the  porter  saw  the  plain- 
tiff fall  forward,  or  could  have  prevented  the  accident.  It  was  therefore  held  that 
what  happened  was  a  pure  accident,  and  that  the  defendants  were  not  respon- 
sible. 

It  is  not  negligence,  as  a  matter  of  law,  for  a  passenger  to  follow  the  direction 
given  by  a  servant  of  the  railroad  company,  and  to  pass  from  one  car  to  another 
i:or  the  purpose  of  finding  a  seat.  It  is  properly  left  to  the  jury  to  say  whethei- 
the  passenger  was  guilty  of  negligence,  in  view  of  the   direction  given,   in 

1  37  L.  J.  (C.  P.)  300.  t  Metropolitan  R.  Co.  v.  Jackson,  3  App 

2  L.R.  3C.P.  368;  «.  c.  37  L.  J.  (C.  P.)  176;  Cas.  193  ;s.  c.  L.  R.  IOC.  P.  49;  44  L.J.  (C.  P.) 
L.  R.  4  C.  P.  619.  '  4  Hurl.  &  Colt.  699.  S3. 


RIDING    IN    UNAUTHOIllZED    MANNER.  265 


In  the  Bao;s:age-Car. 


attempting  to  pass  at  once  from  one  car  to  another,  although  the  cars  were  in 
rapid  motion,  the  night  dark,  rain  and  sleet  falling  and  freezing,  and  none  of 
the  company's  employees  at  hand  to  render  assistance  in  the  passage.^  So  also 
it  is  the  province  of  the  jury  to  determine  both  the  nature  and  effect  of  the 
conductor's  remarks;  whether  they  were  intended  and  understood  as  an  order 
to  change  from  car  to  car,  or  were  by  way  of  advice,  and  also  whether  such 
remarks  affected  the  action  of  the  passenger,  and  caused  him  to  act  differently 
from  the  manner  in  which  he  otherwise  would  have  acted. ^ 

There  are  certain  portions  of  every  carrier's  vehicles  which  are  so  obviously 
dangerous  for  a  passenger  to  occupy,  and  so  plainly  not  designed  for  his  recep- 
tion, that  the  presence  of  the  passenger  there  will  constitute  negligence  as  a 
matter  of  law,  and  preclude  him  from  claiming  damages  for  injuries  received 
while  in  such  position.  For  instance,  the  engine  would  seem  to  be  a  place 
designed  exclusivel}'  for  the  employees  of  a  railroad  company,  even  in  the 
absence  of  regulations  forbidding  the  presence  of  passengers  thereon.  There- 
fore a  person  who  applied  to  the  engineer  of  a  train  for  permission  to  ride  upon 
his  engine,  and  was  informed  that  it  was  against  the  rules  of  the  company  to 
carry  him  in  that  place,  but  finally  obtained  the  engineer's  consent  and  rode 
there,  paying  no  fare,  and  without  the  knowledge  of  the  conductor,  was  held  to 
be  a  wrong-doer,  and  unlawfully  in  such  position,  and  properly  nonsuited  in  an 
action  for  damages  received  in  consequence  of  the  engine  running  upon  an 
obstruction  on  the  track.^  So  also  a  laborer  in  the  employ  of  the  railroad 
company  on  a  construction-train,  being  told  by  the  person  in  charge  of  the  train 
that  they  were  behind  time  and  must  hurry,  and  to  "jump  on  anywhere," 
climbed  upon  the  pilot  of  the  locomotive,  and  rode  there  until  he  was  injured  by 
a  collision  of  the  engine  with  cars  standing  upon  the  track.  The  train  consisted 
of  the  locomotive,  tender,  and  box-car  in  which  he  ought  to  have  ridden.  He 
had  previously  been  warned  against  riding  on  the  pilot  by  the  person  who  gave 
the  order  to  jump  on  at  this  time.  The  Supreme  Court  of  the  United  States 
held  that  riding  in  this  position  constituted  negligence  per  se,  and  that  neither 
the  direction  to  "jump  on  anywhere,"  nor  the  knowledge  of  the  engineer  that 
he  was  riding  in  this  position,  in  any  manner  justified  his  doing  so.  Swayne, 
J.,  said :  "As  well  might  he  have  obeyed  a  suggestion  to  ride  on  the  cow-catcher, 
or  put  himself  on  the  track  before  the  advancing  wheels  of  the  locomotive."* 

1  Mclntyre  v.  New  York  etc.  R.  Co.,  37  N.  Co.  v.  Montgomery,  7  Ind.  474).  The  plaintiff 
Y.  287.  got  upon  a  gravel-train  of  the  defendants, 

2  Cleveland  etc.  R.  Co.  v.  Manson,  30  and  was  informed  by  the  engineer  liaving 
Ohio  St.  4.51.  charge  of  the  locomotive  and  train  of  his 

'■'  Robertson  v.  New  York  etc.  R.  Co.,  22  orders  to  transport  no  passengers.  How- 
Harb.  91.  .See  also  Doggett  v.  Illinois  etc.  ever,  he  paid  his  fare  to  the  engineer,  who 
R.  Co.,  34  Iowa,  2S4,  where  the  passenger  consented  to  his  riding  on  the  tender  of  the 
voluntarily  got  upon  the  tender  of  the  locomotive,  but  directed  him  not  to  go  upon 
engine  to  ride,  an4  while  in  this  position  the  cars.  Ky  a  collision  of  trains  the  plain- 
was  killed  by  the  engine  breaking  through  a  tiff  was  injured.  It  was  held  that  although 
defective  culvert.  A  caboose  was  attached  the  plaintiff  was  acting  at  the  time  in  dis- 
to  the  train  for  passengers,  and  it  appeared  obedience  of  a  proper  order  to  secure  his 
that  if  the  deceased  had  been  in  there  he  safety,  it  should  also  appear  that  the  injury 
would  have  escaped  injury.  On  these  facts,  was  occasioned  by  such  disobedience.  See 
he  was  held  to  have  been  clearly  guilty  of  Keith  v.  Pinkham,  43  Me.  ."iOl. 
contributory  negligence.  Contra  is  the  ••  Railroad  Co.  t;.  Jones,  fl.T  U.  S.  43!>;  «.  c.  6 
judgment  of  the  Supreme  Court  of  Indiana  Cent.  L.  J.  45,  an<e,  p.  248.  Compare  with  this 
in  an  early  (■■^<c    (T.awrencebiirgli    etc.  I?.  case  a  decision  by  the  same  learned  justice 


2G(i  CONTRIBUTORY    NEGLIGENCE    OF    THE    PASSENGER. 


Notes. 


If  a  passenger  occupies  a  position  designed  for  tiis  reception,  it  cannot  be  said 
as  a  matter  of  law  tliat  he  is  guilty  of  negligence  in  remaining  in  such  position, 
althoi^gh  another  might  be  safer.  Thus,  it  was  held  to  be  a  question  for  the  jury 
whether  a  passenger  on  a  steamboat,  injured  by  the  fall  of  a  boat  upon  him,  was 
in  the  exei'cise  of  due  care  in  taking  his  position  under  the  boat,  suspended  over 
a  part  of  a  deck  where  it  was  proper  for  passengers  to  be,  and  iu  continuing  to 
stand  there  without  attempting  to  move  away,  while  he  saw  two  or  three  persons 
enter  it  in  addition  to  two  others  whom  he  had  previously  noticed  there. *  A  pas- 
senger, however,  in  search  of  a  water-closet,  without  making  proper  inquiries, 
is  not  at  liberty  to  go  upon  any  part  of  the  boat,  into  places  not  designed  for  the 
reception  of  passengers  and  under  circumstances  of  danger.'^  So  also  a  passen- 
ger on  a  railway  train,  having  escaped  uninjured  from  a  car  which  caught  fire,  as 
there  was  evidence  tending  to  show,  by  the  negligence  of  the  company,  was 
held  guilty  of  such  negligence  that  he  could  not  recover  for  burns  and  other 
injuries  received  in  rushing  back  into  the  car  again  for  the  purpose  of  recov- 
ering his  valise.* 

§  3.  Leaping  on  or  off  Cars  in  Motion.  —  Circumstances  may  justify  an  act  of 
this  kind.  In  Jones  v.  Boyce,*  Lord  Ellenborough  said:  "  If  I  place  a  man  in 
such  a  situation  that  he  must  adopt  a  perilous  alternative,  I  am  responsible  for 
the  consequences."  Therefore  if  a  passenger  in  a  coach,  by  reason  of  peril  aris- 
ing from  an  accident  for  which  the  proprietors  thereof  are  liable,  is  in  so  dangerous 
a  situation  as  to  render  his  leaping  from  the  coach  an  act  of  reasonable  precau- 
tion, and  he  leaps  therefrom  and  injures  himself,  the  proprietors  are  answerable 
to  him  in  damages,  though  he  might  safely  have  retained  his  seat.^    And  the  rule 

(Indianapolis  etc.  R.  Co.  r.  Horst,  93  U.  S.  291;  ger  until  the  catastrophe  was  upon   him. 

s.  c.  15  Alb.  L.  J.  61),  tlie  facts  of  which  were  The  behavior  of  the  conductor  was  inex- 

as  follows:   The  plaintiff  and  other  drovers,  cusable.    If  tliere  was  fault  on  the  part  of 

in   charge    of   cattle    upon  a    train,    were  the  plaintiff,  in  what  did    it  consist?    We 

directed  by  the  conductor  to  get  out  of  the  find  nothing  in  the  record  which    affords 

caboose  and  get  on  toi)  of  the  train,  as  the  any  warrant  for  such  an  imputation." 

caboose  was   to    be  delMched,  stating  that  A  regulation  by  which  a  passenger  with 

at  some  distance   further  up  the  road  he  live-stock  on  the  freight-train  is  required  to 

would  attach    another.    The  train  wa^•    at  remain  on  the  cars  which  contain  his  stock 

rest,  and  the  plaintiff  and  others  did  as  the  is  not  so  transgressed  by  his  being  in  an- 

conductor  told   them  to  do.    By  a  violent  other  part  of  the  train,  when  it  is  at  rest, 

jerking  and  backing  of  the  train  the  plaintiff  by  the  direction  of   the   conductor,  as    to 

was  thrown  down  between  the  ends  of  two  make  him  a  contributor  to  his  own  injury 

cars.    On  these  facts  the  court  expressed  by  that  train    bcip.g  run  into  by  another, 

itself  as  follows:   "We  have  said  that  riding  Pennsylvania  R.  Co.  v.  McCloskey's  Admin - 

on  the  to])  of    a  freight-car  in    the    night  istrator,  23  Pa.  St.  526. 

involved    peril.     When  commanded  to  go  '  Simmons  v.  New  Bedford  etc.  Steamboat 

there,  the  plaintiff    had  no    choice    but  to  Co.,  97  Mass.  301 ;  s.  c.  100  Mass.  34.    See  also 

obey,  or  to  leave  his  cattle  to  go  forward  Greenland  v.  Chaplin,  5  Exch.  243;  Willis  i\ 

without  any  one   to    accompany  and  take  Long  Island  etc.  R.  Co.,  34  N.  Y.  670. 

care  of    them.    The  command  was  wrong.  2  uougant'.  Champlain  Transp.  Co.,6Lans. 

To  give  him  no  warning  was  an  aggravation  430. 

of  the  wrong.    He,  however,  rode  safely  to  -^  Hay  v.  Great  Western  R.  Co.,  37  Upper 

the  switch,  standing  in  one  place.    He  had  Canada  Q.  B.  456. 

a  riglit    to  assume   that    the    posture    and  *  1  Stark.  493,  aiite,  p.  246. 

place  would  continue  to  be  safe.     He  had  no  ^  joues  f.  Tioyce,  siqjra;  Ingalls  v.  Bills, 

foreknowledge  of  the   coming  shock.    The  an?e,  p.  112;  Stokes  r.  Saltonstall,  o/ife,  p.  183; 

conductor  knew  it,  but  gave  him  no  word  of  McKmney  v.  Neil,  1  McLean,  540;  Friuk  v. 

caution  or  notice.    He  was  unaware  of  dan-  Potter,  17  111.  406. 


LEAPING    ON    OR    OFF    CARS    IN    MOTION.  267 


Time  for  Passenger  to  alight. 

here  announced  is  applicable  to  passengers  upon  railway  trains.  Apprehending 
a  collision  of  trains,  a  passenger  is  justified  in  seeking  safety  in  an  endeavor 
to  leap  from  the  car  in  which  he  is  riding.i  Although  some  degree  of  danger 
may  be  imminent  to  a  passenger  remaining  on  board  the  train,  yet  the  conduct 
of  the  passenger  in  leaping  from  the  train  may  evince  such  rashness  that  he  is 
not  entitled  to  recover.'^ 

When  the  passenger  is  not  granted  a  reasonable  length  of  time  for  alighting, 
and  will  be  subjected  to  the  inconvenience  of  being  carried  beyond  his  destina- 
tion, is  he  then  justified  in  leaping  from  the  train?  The  general  rule  is  that  he  is 
uot ;  and  he  therefore  is  not  entitled  to  recover  for  injuries  received  from  such 
an  act.'  But  this  rule  is  subject  to  exceptions.  For  instance,  to  step  from  a 
car  not  yet  beyond  the  platform,  and  whose  motion  is  so  slight  as  to  be  almost 
or  quite  imperceptible,  may  not  be  negligence,  and  whether  it  is  or  uot  is  for 
the  jury  to  decide  from  the  physical  condition  of  the  person  and  all  the  attend- 
ant circumstances ;  *  or  it  may  be  a  matter  of  such  necessity  that  the  passenger 
should  leave  the  train  that  he  will  be  justified  in  making  the  attempt;  ^  or  the 
passenger  may  act  under  the  command  or  advice  of  the  company's  agents  in  so 
doing;  *  or  may  be  assisted  off  by  the  company's  servants.' 

The  conduct  of  a  passenger  in  running  after  or  alongside  a  rapidly  moving 
train,  and  endeavoring  to  leap  or  climb  upon  it,  is  in  general  an  indication  of 
such  recklessness  that  he  cannot  recover  for  injuries  received  in  the  attempt.^ 
Especially  is  this  true  in  the  case  of  a  passenger  endeavoring  to  climb  upon  a 
car-platform  already  crowded,  the  train  moving  rapidly,  and  persisting  in  the 

'  Buelv.  NewYorketc.  R.  Co.,31N.Y.  314;  will  stop  at  the  station,  leaps  off  before  it 

Eldridge  v.  Long  Island  etc.  R.  Co.,  1  Sandl.  has  come  to  a  stop.    Oiiio  etc.  R.  Co.  v.  Strat- 

S.  C.  89;  South-Western  R.  Co.  ?;.  Paulk,  24  ton,  78  111.  SS;  s.  c.  3  Cent.  L.  J.  415.    Compare 

Ga.  356;  Wilson  v   Nortliern  Pacific  R.  Co.  Keutucliy  etc.  R.  Co.  v.  Dills,  4  Busli,  593. 
(Sup.  Ct.  Minn.  1879),  10  Cent.  L.  J.  56.    But  <  Doss  v.  Missouri  etc.  R.  Co.,  59  Mo.  27; 

see  Collins  v.  Albany  etc.  R.  Co.,  12  Barb.  Illinois  etc.  R.  Co.  v.  Able,  59  111.  131;  Ken 

492.  tucky  etc.  R.  Co.  v.  Dills,  4  Bush,  593. 

-  Galena  etc.  R.  Co.  v.  Yarwood,  15  111.  =  Pennsylvania  R.  Co.  v.  Kilgore,  32  P;i. 

468;   8.  c.  17  111.  509;   Galena  etc.  R.  Co.  v.  St.  292;  Lloyd  i;.  Hannibal  etc.  R.  Co.,  63  Mo. 

Fay,  16  III.  558;  Hill  v.  New  Orleans  etc.  R.  509. 
Co.,  11  La.  An.  292.  c  Georgia  R.  etc.  Co.  ■;;.  McCurdy,  45  Ga. 

3  RailroadCo.v.  Aspen,an<e,p.252;  Jeffer-  288;  Lambeth  «;.  North  Carolina  R.  Co.,  66  N. 

"onville  etc.  R.  Co.  v.  Hendricks's  Adminis-  C.  494;  Lovett  v.  Salem  R.  Co.,  9  Allen,  557; 

trator,  26  Ind.  228;  Morrison  V.Erie  R.  Co.,  56  Filer  w.  New  York  etc.  R.  Co.,  68  N.  Y.  124; 

.\.  Y.  302 ;  Burrows  v.  Erie  R.  Co.,  63  N.  Y.  s.  c.  59  N.  Y.  351 ;  49  N.  Y.  47 ;  Pennsylvania  R. 

."..56  (reversing  s.  c.  3  Thomp.  &  C.  556) ;  Da-  Co.  v.  McCloskey's  Administrator,  23  Pa.  St. 

iiionti'.  New  Orleans  etc.  R.  Co..  9  La.  An.  526.    But  it  maybe  a  question  for  the  jury 

441 ;  Dougherty  v.  Chicago  etc.  R.  Co.,  86  111.  whether  a  reasonable  man  would  have  acted 

467;   Gavett  v.  Manchester  etc.  R.  Co.,  16  upon  such  advice.    Hazard  v.  Chicago  etc. 

Gray,  501;    Lucas    v.  New   Bedford   etc.  R.  R.  Co.,  1  Biss.  503;  $.  c.  26  111.  373;  Chicago 

Co.,  6  Gray,  64;  Ginnonj;.  New  York  etc.  R.  etc.  R.  Co.  t7.  Randolph,  53  111.  510;  Jefl'erson- 

Co.,  3  l!obt.  25.     If  the  train  has  stopped  a  ville  etc.  R.  Co.  v.  Swift,  26  Ind.  4.59;  Pitts- 

suflicient  length  of  time  for  passengers  to  burgli  etc.  K.  Co.  v.  Krouse,  30  Ohio  St.  222. 
get  off,  the  attempt  to  do  so  after  the  train  ^  Columbus  etc.  R.  Co.  v.  Powell,  40  Ind.  37. 

has  started  will  be  wholly  inexcusable.    Illi-  »  phiiHps  v.  Rensselaer  etc.  R.  Co.,  49  N.  Y. 

iiois  etc.  R.  Co.  V.  Slatton,  54  111.  139.    Or  if  177;  s.  c.  57  Barb.  644;  Chicago  etc.  R.  Co.  v. 

the  passenger  gets  off  after  being  warned  Scales  (Sup.  Ct.  111.  1879),  9  Cent.  L.  J.  167; 

that  the  train  has  not  yet  reached  the  sta-  Knight  v.  I'ontchartrain  R.  Co.,  23  La.  An. 

tion.    Ohio  etc.  R.  Co.  v.  Schiebe,  44  111.  460.  462;  Hubener  v.  New  Orleans  etc.  R.  Co.,  2a 

Or  if  the  passenger,  knowing  that  the  train  La.  An.  492. 


2t)8  CONIRIBUTORY    NEGLIGENCE    OF    THE    PASSENGER. 


Notes. 


attempt,  although  once  shaken  off  by  the  jerking  of  the  train. i  But  this  rule  is 
subject  to  qualification.  It  has  been  held  that  the  mere  fact  that  the  train  is  dis- 
tinctly moving,  or  under  way,  does  not  in  evei-y  case  make  it  negligence,  in  law, 
to  make  the  attempt ;  especially  where,  by  reason  of  the  negligence  of  the  train- 
men, a  reasonable  opportunity  has  not  been  given  to  get  on.  Such  a  case  should 
be  submitted  to  the  jury.^ 

We  have  previously  noticed  there  is  little  analogy  between  the  operation  of 
steam-cars  and  the  vehicles  ordinarily  run  upon  street-railroad  tracks.  There- 
fore it  would  seem  to  have  been  properly  held  that  it  is  not  negligence,  as  a 
matter  of  law,  for  a  passenger  to  leap  from  a  street-railroad  car  while  in  motion, 
after  a  failure  on  the  part  of  the  persons  managing  the  same  to  bring  it  to  a 
stop  when  requested.* 

§  4.  Getting  on  and  off  Train  at  a  Dangerous  Place.  —  When,  by  reason  of 
the  insufficiency  of  the  station,  or  length  of  the  train,  or  negligence  in  the 
operation  of  it,  passenger-cars  are  brought  to  a  stand  at  places  where  there  is 
no  landing  or  other  conveniences  for  getting  off  the  train,  if  it  is  reasonable  to 
suppose  that  no  better  opportunity  will  be  granted  for  this  purpose,  the  passen- 
ger may  alight,  although  the  position  is  inconvenient  or  slightly  dangerous.  If 
the  company's  servants  have  given  the  passenger  an  express  invitation  to  alight,* 
or  their  conduct  is  such  as  to  imply  an  invitation, ^  the  passenger  will  be  justified 
in  making  the  attempt.  But  if  the  passenger  is  aware  that  the  train  is  not 
opposite  a  platform,  and  in  alighting  at  such  a  place  is  guilty  of  a  reckless  indif- 
ference as  to  his  safety,  he  cannot  recover  for  injuries  received.^ 

1  Phillips  V.  Rensselaer  etc.  R.  Co.,  supra.  C.  P.  461,  note  (1) ;  Thompson  v.  Belfast  etc. 
See  also  Harper  v.  Erie  R.  Co.,  32  N.  J.  L.  88.  R.  Co..  Irish  Rep.  5  C.  L.  517 ;  Scott  v.  Dub- 

2  Johnson  V.  West  Chester  etc.  R.  Co.,  70  lin  etc.  R.  Co.,  11  Irish  C.  L.  (x.  s.)  377; 
Pa.  St.  357;  s.  c.  11  Am.  L.  Reg.  159.  Nicliolls  v.  Great  Southern  R.  Co.,  Irish  Rep. 

3  Wyatt  V.  Citizens'  R.  Co.,  55  Mo.  485;  7C.  L.  40;  Weller  v.  London  etc.  R.  Co.,  L. 
Crissey  v.  Hestonville  etc.  R.  Co.,  75  Pa.  St.,  R.  9  C.  P.  12fi;  s.  c.  43  L.  J.  (C.  P.)  137;  22 
83;  Philadelphia  etc.  R.  Co.  v.  Hassard,  75  Week.  Rep.  302;  29  L.  T.  (N.  s.)  888;  Praeger 
Pa.  St.  307;  s.  c.  1  Cent.  L.  J.  373.  Contra,  v.  Bristol  etc.  R.  Co.  (MS.),  24  L.  T.  (N.  S.) 
Nichols  V.  Sixth  Avenue  R.  Co.,  38  N.  Y.  131.  105  (stated  at  length  in  L.  R.  7  C.  P.  323)  ; 
But  in  this  case  the  courtruled  that  the  mere  Cockle  v.  London  etc.  R.  Co.,  L.  R.  7  C.  P. 
preparation  to  leave  a  street-car  while  in  321;  s.c.  41  L.J.  (C.  P.)  140;  L.  R.  5  C.  P.  457;  39 
motionisnotof  itself  negligence,  if  there  are  L.J.  (C.  P.)226;  27  L.  T.  (N.  s.)320;  20  Week, 
indications  of  its  stopping.  Therefore  a  per-  Rep.  7.")4;  Delamatyr  v.  Milwaukee  etc.  R. 
son  could  recover  for  injuries  received  by  Co.,  24  Wis.  578;  Evansville  etc.  R.  Co.  v. 
being  shaken  off  a  car  by  a  sudden  move-  Duncan,  28  lud.  441;  Taber  v.  Delawai-e  etc. 
ment,  while  standing  on  the  platform  wait-  R.  Co.,  71  N.  Y.  489;  Central  R.  Co.  i'.  Van 
ing  for  it  to  stop.  See  also  Chicago  City  R.  Horn,  38  N.  J.  L.  133;  Columbus  etc.  R.  Co. 
Co.  v.  Munf ord  (Sup.  Ct.  111.  1880),  21  Alb.  L.  v.  Farrell,  31  Ind.  408.  The  decisions  in 
J.  214.  Siner  v.  Great  Western  R.  Co.,  L.  R.  3  IZxch. 

4  Toy  w.  London  etc.  R.  Co.,  18  C.  B.  (N.  S.)  150;  s.  c.  L.  R.  4  Exch.  117,  and  Pabst  v. 
225.  Baltimore  etc.  R.  Co.,  2  3IcArthur,  42,  may 

5  Robson  V.  North-Eastern  R.  Co.,  L.  R.  be  regarded  as  quite  out  of  line  with  author- 
10  Q.  B.  271 ;  Bridges  v.  London  etc.  B.  Co.,  ity,  and  inconsistent  with  later  adjudications 
L.  R.  6  Q.  B.  377;  s.  c.  40  L.  J.  (Q.  B.)  188;  L.  on  this  subject.    Ante,  p.  229,  §  IS. 

R.  7  H.  L.  213;  43  L.  J.  (Q.  li.)  151;  23  Week.  «  Ilarrold  v.  Great  Western  R.  Co.,  14  L. 

Rep.  62;  30  L.  T.   (N.  S.)  844;  Whittaker  v.  T.  (N.  S.)  440;  Lewis  i\  London  etc.  R.  Co., 

Manchester  etc.  R.  Co.,  L.  R.  5  C.  P.  464,  note  L.  R.  9  Q.  B.  66;  43  L.  J.   (Q.  B.)  8;  Evans- 

(3) ;  Petty  v.  Great  Western  R.  Co.,  L.  R.  5  ville  etc.  R.  Co.  v.  Duncan,  28  Ind.  441. 


GETTING    ON    AND    OFF    AT    DANGEROUS    PLACE.  269 


Duty  of  Carrier  to  provide  Means  of  Egress. 

If  a  railroad  train  is  stopped  at  night  merely  for  the  purpose  of  allowing  a 
train  which  is  expected  from  the  opposite  direction  to  pass  by,  without  notice 
given  by  the  sei'vants  of  the  company  to  passengers  that  they  may  leave  the  cars, 
one  who  leaves  the  cars  and  walks  into  an  open  cattle-guard,  and  receives  a  per- 
sonal injury,  cannot  maintain  an  action  against  the  company  to  recover  damages 
therefor ;  and  it  is  immaterial  that  he  was  misinformed  by  some  person  not  in 
the  employment  of  the  company  that  he  must  go  and  see  to  having  his  baggage 
passed  at  a  custom-house,  supposed  to  have  been  reached  by  the  train,  or  that 
the  train  was  near  a  passenger-station,  which  was  not  the  place  of  his  destina- 
tion.' 

Wherever  a  railroad  company  is  in  the  habit  of  receiving  passengers,  whether 
at  a  station  or  some  point  outside,  or  if  by  the  regular  operation  of  trains  it  is 
necessary  to  traverse  portions  of  the  premises  outside  of  the  station-house,  pas- 
sengers have  a  right  to  assume  that  such  parts  of  the  premises  are  in  a  safe 
condition  for  such  purpose,  even  on  a  dark  night. ^ 

When  the  railroad  company  have  provided  safe  and  convenient  means  for  pas- 
sengers to  get  on  and  off  their  trains,  if  the  passenger  uses  a  way  of  his  own 
choice,  in  preference  to  that  provided  by  the  company,  he  will  be  responsible  for 
accidents  which  happen  in  consequence.' 

Injuries  frequently  happen  to  passengers  by  being  run  over  by  other  trains 
passing  through  stations,  while  taking  or  leaving  their  own  trains.  In  cases  of 
this  kind,  it  would  seem  that  if  the  running  arrangements  of  the  road  are  such 
that  it  is  necessary  to  pass  over  a  railroad  track  in  order  to  take  or  leave  a  train, 
the  passenger  may  rightfully  expect  protection  against  the  running  of  trains  at 
such  a  time,  and  may  therefore  properly  relax  that  vigilance  for  his  safety  which 
is  ordinarily  demanded  of  one  coming  upon  a  railroad  track.*  But  if  the  presence 
of  the  passenger  on  the  track  is  not  essential  to  his  getting  on  and  off  the  train, 
and  he  has  neglected  safe  and  convenient  means  provided  by  the  company  for 
this  purpose,  he  is  there  at  his  peril.* 

The  Supreme  Judicial  Court  of  Massachusetts,  which,  in  all  cases  of  tort  aris- 
ing out  of  negligence,  holds  the  plaintiff  very  strictly  to  the  proof  of  exercise  of 
due  care  on  his  own  part  as  a  condition  precedent  to  his  right  of  recovery,  has 
held,  in  cases  of  injury  to  passengers,  where  there  was  a  reasonable  justification 
for  their  being  on  the  track,  that  they  are  nevertheless  bound  to  exercise  due 
care  in  such  position,  and  that  it  is  a  question  for  the  jury  whether  they  were 
careless  or  not  at  the  time  of  the  injury.  It  was  so  held  in  Warren  v.  Fitchburg, 
etc.  Railroad  Company,^  where  the  plaintiff  bought  a  ticket  at  a  station,  and  the 

1  Frost  V.  Grand  Trunk  R.  Co.,  10  Allen,  ^  Pennsylvania  R.  Co.  v.  Zebe,  33  Pa.  St. 
387.  318;  s.  c.  37  Pa.  St.  420;  Bancroft  v.  Boston 

2  Hulbert  V.  New  York  etc.  R.  Co.,  40  N.  etc.  R.  Co.,  97  Mass.  275;  Gonzales  v.  New 
Y.  145;  McDonald  i).  Chicago  etc.  R.  Co.,  York  etc  R.  Co.,  50  How.  Pr.  126;  Forsyth  r. 
ante,  p.  93;  Dillaye  v.  New  York  etc.  R.  Co.,  Boston  etc.  R.  Co.,  103  Mass.  510.  But  see 
56  Barb.  30;  Knight  v.  Portland  etc.  R.  Co.,  Dublinetc.  R.  Co.  v.  Slattery,  3  App.Cas.  1155. 
.56  Me.  234;  Martin  v.  Great  Northern  R.  Co.,  *  Klein  v.  Jewett,  26  N.  J.  Eq.  474;  Chi- 
16  C.  B.  179;  Nicholson  v.  Lancashire  etc.  R.  cago  etc.  R.  Co.  v.  Wilson,  63  111.  167;  Arm- 
Co.,  ante,  p.  85.  Passengers  are  not,  how-  strong  v.  New  York  etc.  R.  Co.,  66  Barb.  437. 
ever.  Justified  in  taking  a  course  of  their  "Pennsylvania  R.  Co.  v.  Zebe,  33  Pa.  St. 
own  across  the  company's  premises,  for  the  318;  s.  c.  37  Pa.  St.  420;  Bancroft  v.  Boston 
purpose  of  reaching  the  train  sooner  than  etc.  R.  Co.,  97  Mass.  275;  Gonzales  v.  New 
by  the  customary  way.  Burgess  v.  Great  York  etc.  R.  Co.,  50  How.  Pr.  126. 
Western  R.  Co.,  6  C.  B.  (N.  S.)  923.  «  8  Allen,  227. 


270  CONTKIBUTORY    NEGLIGENCE    OF    THE    PASSENGER. 


Notes. 


station-agent  said  to  him,  "The  train  is  coming,  —  we  wUl  cross  over,"  and  he 
attempted  to  follow  him,  for  the  purpose  of  taking  his  seat  in  the  train  (which 
meanwhile  had  arrived),  and,  in  crossing  a  track  for  that  purpose,  was  struck  by 
another  train,  coming  from  the  other  direction  and  partially  behind  him,  which 
he  did  not  look  for  or  see  until  too  late  to  save  himself  .^  In  Gaynor  v.  Old  Col- 
ony, etc.  Bailroad  Company^  the  same  court  said:  "No  one  can  be  said  to  be  in 
the  exercise  of  due  care  who  places  himself  upon  a  railroad  track  without  the 
assurance,  from  actual  observation,  that  there  is  no  approaching  train.  But  the 
degree  of  caution  which  he  must  exercise  in  crossing  will  be  affected  always  by 
the  circumstances  of  the  time  and  place.  He  has  a  right  to  rely  to  some  extent 
upon  proper  precautions  and  the  usual  signals  of  warning,  to  be  given  by  an 
engine  or  train  passing  a  station  where  passengers  are  leaving  another  train  upon 
its  fresh  arrival."^ 

Circumstances  of  paramount  necessity,  however,  will  justify  a  passenger  in  leav- 
ing the  train  in  a  manner  other  than  that  provided  by  the  company,  — as,  where 
the  station  of  the  plaintiff  was  not  announced,  and  the  train  stopped  but  a  short 
time,  necessitating  great  haste  on  the  part  of  the  plaintiff  in  getting  off  the  train 
after  she  had  ascertained  that  she  had  reached  her  destination,  whereby  she  got 
off  upon  the  wrong  side,  and,  coming  upon  a  parallel  track,  was  injured  by  an 
express  train  which  drove  past  at  great  speed.* 

Although  it  is  the  duty  of  the  railroad  company  to  have  its  trains  safely  and 
conveniently  accessible  to  persons  intending  to  take  them,  yet  this  will  not  justify 
a  passenger  who  finds  a  freight-train,  with  steam  up  and  blocking  the  way,  in 
crawling  through  or  under  it  without  permission  of  or  notice  to  any  one  in 
charge  of  this  train.' 

§  5.  Passenger  laboring  vmder  a  Disability.  —  It  is  consistent  not  only 
with  common  humanity,  but  with  the  legal  obligations  of  the  carrier,  that  if  a 
passenger  is  known  to  be  in  any  manner  affected  by  a  disability,  physically  or 
mentally,  whereby  the  hazards  of  travel  are  increased,  a  degree  of  attention 
should  be  bestowed  to  his  safety  beyond  that  of  an  ordinary  passenger,  in  pro- 
portion to  the  liability  to  injury  from  the  want  of  it.*    But  in  order  that  the 

1  See  also  Mayo  v.  Boston  etc.  R.  Co.,  104  said  to  be  negligence  in  law,  but  that  under 

Mass.  137.                    ^  100  Mass.  208,  213.  all  the  circumstances  her  negligence  was  a 

s  To  the  same  effect  see  Chaffee  i'.  Boston  question  for  the  jury.    AUender  v.  Chicago 

etc.  R.  Co.,  104  Mass.  108;  Wheelock  v.  Bos-  etc.  R.  Co.,  37  Iowa,  264. 

ton  etc.  R.  Co.,  105  Mass.  203.  «  Sheridan  v.  Brooklyn  City  R.  Co.,  36  N. 

«  Keller  v.  New  York  etc.  R.  Co.,  24  How.  Y.  39;  s.  c.  34  How.  Pr.  217;  Giles  v.  Great 

Pr.  172;  Dickens  v.  New  York  etc.  R.  Co.,  1  Western  R.  Co.,  36  Upper  Canada  Q.  B.  360, 

Abb.  App.  Dec.  504.  369 ;  Pittsburgh  etc.  R.  Co.  v.  McClurg,  56  Pa. 

^  Chicago  etc.  R.  Co.  v.  Coss,  73  111.394;  St.  294;  Columbus  etc.  R.  Co.  v.  Powell,  40 
Chicago  etc.  R.  Co.  v.  Dewey,  26  111.  255.  Ind.  37.  But  see  New  Orleans  etc.  R.  Co.  v. 
Where  a  person  about  to  take  passage  on  a  Statham,  42  Miss.  607,  where  certain  state- 
train,  having  first  looked  up  and  down  the  ments  are  made  by  the  court  which  derive 
track  and  seen  no  car  in  motion,  but  a  loco-  no  support  from  authority  in  general,  as  for 
motive  standing  far  away,  crawled  between  example:  "All  assistance  that  a  conductor 
two  freight- cars  which  belonged  to  a  train  may  extend  to  ladies  without  escorts,  or 
with  no  locomotive  attached,  and  while  in  with  children,  or  to  persons  who  are  sick, 
such  position  was  injured  by  cars  being  pro-  and  ask  his  assistance  in  getting  on  and  off 
pelled  against  the  end  of  the  train,  in  the  trains,  is  purely  a  matter  of  courtesy,  and 
process  uf  making  it  up,  it  was  held  that  the  not  at  all  incumbent  upon  him  in  the  line  of 
conduct  of  the  injured  person  could  not  be  his  public  duty." 


PASSENGER    UNDER    DISABILITY.  271 


Lunatics  —  Intoxicated  Persons. 


carrier  may  be  invested  with  this  duty,  it  is  necessary  that  the  condition  and 
wants  of  the  passenger  in  this  respect  should  be  made  known  to  him  or  his  ser- 
vants.' 

This  is  well  illustrated  by  a  frequently  cited  case.  In  Willetts  v.  Buffalo,  etc. 
Bailroad  Company,'^  the  facts  were  that  a  lunatic  was  travelling  upon  a  train  in 
company  with  his  father,  who  had  procured  tickets  for  both.  The  father  got  out 
at  a  way-station  to  procure  refi'eshments,  leaving  his  son  in  the  cars  without 
giving  notice  to  any  one  of  his  condition.  During  the  absence  of  the  father,  the 
son  changed  his  seat.  After  the  train  started,  the  father  having  not  yet  found 
his  son  or  given  notice  that  he  was  missing,  the  conductor,  in  the  absence  of  the 
former,  applied  to  the  latter  for  his  ticket.  The  lunatic  handed  the  conductor 
the  card  of  a  public-house.  On  being  threatened  with  expulsion  from  the  train 
if  he  did  not  pay  his  fare,  he  produced  another  hotel-ticket ;  whereupon  he  was 
gently  put  off  the  train,  after  slight  resistance,  saying,  as  he  left,  that  "Judge 
Miller"  had  paid  his  fare,  or  would  pay  it.  The  strange  conduct  of  the  passen- 
ger, and  a  wild  stare  by  him  as  he  stood  on  the  ground,  induced  a  person  who 
assisted  the  conductor  in  putting  him  off  to  inquire  whether  there  was  any  thing 
the  matter  with  the  man;  to  which  the  conductor  replied  that  he  was  "one  of 
the  stubborn  kind."  Subsequently  to  this  occurrence,  and  in  ignorance  of  it, 
the  father  of  the  lunatic  made  inquiries  of  the  conductor  in  regard  to  his  son, 
and  ascertained  that  he  had  been  put  off  the  train.  Every  facility  was  afforded 
the  father,  by  the  conductor  of  this  and  other  trains,  for  finding  him  again ;  but 
the  lunatic,  having  got  upon  the  track,  was  run  over  and  killed  by  another  train, 
several  hours  later,  in  the  night-time,  under  circumstances  which  exonerated  the 
company  from  every  imputation  of  negligence  as  to  this  occurrence.  The  court 
held  that  no  part  of  the  conduct  of  the  deceased  furnished  sufficient  evidence  of 
insanity  to  put  the  conductor  on  his  guard,  and  that  thei'efore  no  recovery 
could  be  had  against  the  company  by  the  personal  representative. 

The  fact  that  a  passenger  is  intoxicated  does  not  absolve  the  carrier  from  the 
duty  of  exercising  the  same  care  for  his  safety  as  for  that  of  other  passengers, 
although  this  circumstance  may  be  shown  as  indicating  contributory  negligence 
in  case  of  injury  received  by  him.'  Indeed,  it  is  properly  held  that  it  is  the  duty 
of  the  carrier's  servants  under  such  circumstances,  when  aware  of  the  intoxica- 
tion of  the  passenger,  to  give  him  that  degree  of  attention  which  considerations 
for  his  safety  demand,  beyond  that  ordinarily  bestowed  upon  passengers.* 

Whenever  a  passenger  can  remedy  the  derangement  or  loss  of  one  faculty  by  a 
more  than  ordinarily  diligent  use  of  another,  it  is  his  duty  to  do  so.    Thus,  a 

1  Willetts  V.  Buffalo  etc.  R.  Co.,  14  Barb-  tributory  negligence,  see  Wynn  v.  Allard,  5 

585;  Toledo  etc.  R.  Co.  v.  Baddeley,  54  111.  Watts  &  S.  524;  Chicago  etc.  U.  Co.  v.  Bell, 

19;  New  Orleans  etc.  R.  Co.  v.  Statham,  42  70  111.  102;  Toledo  etc.  R.  Co.  v.  Riley,  47  111. 

Miss.  607.                             -  14  Barb.  585.  514 ;  Baltimore  etc.  B.  Co.  v.  Boteler,  38  Md. 

<  Milliman  v.  New  York  etc.  R.  Co.,  6  568;  Ilealy  v.  New  York,3IIuii,708;  Ditchett 
Thomp.  &  C.  585;  8.  c.  66  N.  Y.  642;  Maguire  v.  Spuyten  Duyvil  etc.  R.  Co.,  5  Hun,  165; 
V,  Middlesex  R.  Co.,  115  Mass.  239;  Whalen  Alger  v.  Lowell,  3  Allen,  402;  Stuart  v.  Ma- 
V.  St.  Louis  etc.  R.  Co.,  60  Mo.  323.  chias  Port,  48  Me.  477 ;  Cramer  v.  Burlington, 

<  Giles  «.  Great  Western  R.  Co.,  36  Upper  42  Iowa,  315;  Burns  v.  Elba,  32  Wis.  605; 
Canada  Q.  B.  360;  Haley  v.  Chicago  etc.  R.  Thorp  v.  Brookfield,  36  Conn.  ;?21 ;  O'Hagan 
Co.,Jl  Iowa,  15,  23.  Upon  the  general  sub-  v.  Dillon,  10  Jones  &  Sp.  456;  Robinson  h. 
ject  of  intoxication  as  an  element  of  con-  Pioche,  5  Cal.  460. 


272  CONTRIBUTORY    NEGLIGENCE    OF    THE    PASSENGER. 


Notes. 


person  very  short-sighted  is  materially  assisted  in  many  situations  by  listening 
very  attentively ;  therefore  it  cannot  be  urged  as  a  circumstance  excusing  a  pas- 
senger in  getting  off  a  train  upon  a  railroad  track  alongside,  that  by  reason  of 
his  short-sightedness  he  could  not  have  seen  an  approaching  train  by  vrhich  he 
was  killed,  even  if  he  had  looked  up  and  down  the  track  for  this  purpose  (a  pre- 
caution which  the  law  imperatively  demands) .  The  passenger  in  such  a  situation 
should  either  listen  for  the  train,  or,  more  properly  yet,  get  out  upon  the  plat- 
form on  the  other  side,  designed  for  the  reception  of  passengers. i 

In  case  of  negligent  management  of  a  railroad  train,  it  will  be  no  excuse  for 
the  company  that  the  impaired  faculties  of  the  passenger  materially  contributed 
to  the  injuries  received  in  consequence  of  its  negligence.* 

1  Gonzales  v.  New  York  etc.  R.  Co.,  50  7  H.  L.  213  (reversing  «.  c.  L.  B.  6  Q.  r. 
"low.  Pr.  126.  377) ;  Patten  v.  Chicago  etc.  R.  Co.,  32  Wis. 

2  Bridges  v.  London  etc.  B.  Co.,  L.  B.       524. 


CHAPTEE    YIL 

APPLICATIONS   OF    THE   DOCTRINE    OF   IlklPUTED   NEGLI- 
GENCE   IN   THE   CARRIAGE   OF  PASSENGERS. 


Leading  Cases:    1.  Thorogood  v.  Bryan.  —  The  passenger  upon  the  vehicle  of 
a  common  carrier  chargeable  with  the  negligence  of  such 
carrier,  as  regards  third  persons. 
2.  Bennett  v.  New  Jersey  Bailroad  and  Transportation  Com- 
pany.—  This  doctrine  denied. 
Notes:     §  1.  Imputed  negligence  —  Proper  scope  of  the  rule. 

2.  Thorogood  v.  Bryan  doubted. 

3.  Thorogood  v.  Bryan  not  followed. 

4.  The  principle  of  Thorogood  v.  Bryan  subsequently  reas- 

serted. 
6.  American  authority  upon  this  subject. 

6.  Negligence  of  a  stranger  concurring  with  negligence  of  the 

carrier,  to  injury  of  passenger. 

7.  Children  and  persons  of  unsound  mind  as  passengers. 

8.  Other  cases  illustrative  of  the  rule. 


1.  PASSENGER  CHARGEABLE  WITH  THE  CARRIER'S  NEGLIGENCE  AS 
REGARDS   THIRD   PERSONS. 

* 

Thorogood  v.  Bryan.* 

English  Court  of  Common  Pleas,  1849. 

The  Right  Hon.  Sir  Thomas  Wilde,  Kt.,  Lord  Chief  Justice. 
Sir  Thomas  Coltmax,  Kt., 

"    William  Henry  Maule,  Kt., 

"    Cresswell  Cresswell,  Kt.,  \  Justices. 

"    Edward  Vaughan  Williams,  Kt., 

*•    Thomas  Noon  Talfourd,  Kt., 

A  passen^rer  upon  the  vehicle  of  a  common  carrier,  who  sustains  an  injury  which  is  the 
result  of  the  concurrent  negligence  of  those  in  charge  of  such  vehicle  and  third  per- 
sons, is  so  identified  with  the  former  as  to  be  chargeable  with  their  negligence,  in  an 
action  against  the  latter,  and  therefore  entitled  only  to  recover  damages  from  his 
carrier. 

•  Reported,  8  C.  B.  114, 120.  The  editor  has  not  deemed  it  necessary  to  present  the  case  of 
Cattlin  V.  Hills,  involving  the  same  principle  as  this  case,  which  was  argued  and  reported  in 
connection  with  it,  as  that  case  was  compromised  upon  the  basis  of  the  opinion  in  this  case, 
no  opinion  being  delivered  therein.    For  a  statement  of  the  facts  in  that  case,  see  post,  §  2. 

18  (273) 


274  IMPUTED    NEGLIGENCE. 

Thorogood  v.  Bryan. 

This  was  an  action  upon  the  case  brought  by  the  plai^itiff,  Sarah 
Thorogood,  as  administratrix  of  her  late  husband,  Charles  Abraham 
Thorogood,  under  the  statute  10  Vict.,  e.  93,  to  recover  damages 
against  the  defendant  for  negligently  causing  the  intestate's  death. 

The  declaration  stated  that  Charles  Abraham  Thorogood,  in  his  life- 
time, and  before  the  committing  of  the  grievances  thereinafter  men 
tioned,  was  lawfully  passing  along  a  certain  public  highway ;  that  the 
defendant,  at  the  time  of  the  committing  of  the  grievance,  was  pos- 
sessed of  a  certain  cai'rioge  called  an  omnibus,  and  of  two  horses  then 
drawing  the  same  along  the  said  highwa}",  which  said  carriage  and  horses 
were  under  the  care  and  direction  of  a  certain  servant  of  the  defendant ; 
yet  that  the  defendant,  after  the  passing  of  a  certain  act  of  Parliament, 
made  and  passed,  etc.,  intituled  "'An  act  to  compensate  the  families  of 
persons  killed  by  accident,"  to  wit,  on,  etc.,  by  her  said  servant,  so 
carelessly  drove  and  directed  the  said  carriage  and  horses,  that  by 
the  negligence  and  improper  conduct  of  the  defendant,  by  her  said 
servant  in  that  behalf,  they  ran  against  the  said  Charles  Abraham  Thor- 
ogood, so  then  lawfully  passing  along  the  said  highway,  and  knocked 
him  down  and  passed  over  him,  and  thereby  greatly  crushed  and  injured 
him  ;  and  by  reason  of  the  premises  the  said  Charles  Abraham  Thoro- 
good, within  twelve  calendar  months  next  before  the  commencement  of 
the  suit,  to  wit,  on,  etc.,  died,  leaving  him  surviving  the  plaintiff,  who, 
at  the  time  of  his  death,  was  his  wife,  and  John,  Sarah,  Esther,  and 
Emma,  his  children,  etc. 

The  defendant  pleaded  not  guilty,  wliereupon  issue  was  joined. 

The  cause  was  tried  before  V.  Williams,  J.,  at  the  Sittings  in  Middle- 
sex, after  Trinity  Term,  1848.  The  facts  that  appeared  in  evidence 
were  as  follows:  On  the  3d  of  January,  1848,  Charles  Abraham  Thoro- 
good, the  husband  of  the  plaintiff  (whose  administratrix  she  was),  was 
a  passenger  in  an  omnibus  belonging  to  one  Barber,  in  which  he  was 
proceeding  toward  Clapton  about  eight  o'clock  in  the  evening.  The 
defendant,  Mrs.  Bryan,  was  the  proprietress  of  another  omnibus  running 
on  the  same  line  of  road.  Both  vehicles  had  started  together,  and  fre- 
quently passed  each  other  as  either  stopped  to  take  up  or  set  down  a 
|)assenger.  The  deceased,  wishing  to  alight,  did  not  wait  for  the  omni- 
!)us  to  draw  up  at  the  curb,  but  got  out  whilst  it  was  in  motion,  and  far 
enough  from  the  path  to  allow  another  carriage  to  pass  on  the  near  side. 
L'he  defendant's  omnibus  coming  up  at  the  moment,  the  deceased  was 
unable  to  get  out  of  the  way,  and  was  knocked  down  and  run  over,  and 
seven  daj's  afterwai'ds  died  of  the  injuries  he  so  sustained. 

On  the  part  of  the  defendant  it  was  submitted,  upon  the  authority 


PASSENGER  CHARGEABLE  WITH  CARRIER'S  NEGLIGENCE.       275 

English  Court  of  Common  Pleas. 

of  Butterfield  v.  Forres^ter  '  and  Bridge  v.  The  Grand  Junction  Railway 
Company,'^  that  the  plaintiff  was  not  entitled  to  recover,  inasmuch  as 
the  evidence  showed  that  the  accident  was  at  least  in  part  occasioned 
by  the  negligence  of  the  driver  of  Barber's  omnibus,  in  permitting  a 
l)assenger  to  alight  without  drawing  up  at  the  curb  and  whilst  the  vehi- 
cle was  in  motion,  and  by  want  of  care  and  caution  on  the  part  of  the 
deceased  himself. 

The  learned  judge  told  the  jury,  that,  if  they  were  of  opinion  that  the 
injuries  sustained  b}^  the  deceased  were  purely  the  result  of  accident, 
they  must  find  for  the  defendant ;  and  he  further  told  them,  that,  if  they 
were  of  opinion  that  want  of  care  on  the  part  of  the  driver  of  Barber's 
omnibus  in  not  drawing  up  to  the  curb  to  put  the  deceased  down,  or 
any  want  of  care  on  the  part  of  the  deceased  himself,  had  been  con- 
ducive to  the  injury,  in  either  of  those  cases  —  notwithstanding  the 
defendant  (by  her  servant)  had  been  guilty  of  negligence  —  their  ver- 
dict must  be  for  the  defendant. 

The  jury  returned  a  verdict  for  the  defendant. 

Humphrey^  in  Trinity  Term,  1848,  obtained  a  rule  nisi  for  a  new  trial, 
on  the  ground  of  misdirection.  He  submitted  that  the  ruling  of  the 
learned  judge  would  necessarily  lead  to  this  absurd  result:  that  a  pas- 
senger who  is  injured  by  a  collision  between  two  omnil)uses  has  no 
remedy  against  the  proprietor  of  either,  if  the  drivers  of  both  are  guilty 
of  negligence  or  improper  conduct.  And  he  cited  Lynch  v.  Nurdiii,^ 
Pluckioell  v.   Wilson^'^  and  Luxford  v.  Large.^ 

Talfourd,  Serjt.,  now  showed  cause.  The  direction  of  the  learned 
judge  was  perfectly  correct.  The  true  principle  which  governs  these 
cases  is  to  be  found  in  the  statement  of  the  cause  of  action  in  the 
declaration,  which,  in  substance,  is,  that  the  injury  was  the  result  solely 
of  negligence  and  improper  conduct  on  the  part  of  the  defendant's  ser- 
vant. The  question  is,  whether  the  injury  of  which  the  plaintiff 
complains  proceeded  from  negligence  on  the  part  of  the  defendant,  or 
from  something  over  which  the  defendant  had  no  control.  Many  cases 
might  be  put,  in  which  a  part}',  though  himself  in  fault,  might  still  be 
entitled  to  compensation  for  damage  sustained  through  another's  negli- 
gence. For  instance,  suppose  a  drunken  man  lying  in  a  carriage-way, 
and  a  carriage,  recklessly  driven  along  the  road,  passed  over  and  injui'ed 
him,  — the  inebriety  of  the  plaintiff  would  be  no  defence  to  an  action. 
The  true  inquiry  is,  whether  the  injury  complained  of  is  fairly  attribu- 

1  11  East,  60.  8  1  Q.  B.  29 ;  s.  c.  4  Per.  &  Dav.  672. 

-  3  Mee.  &  VV.  244;  ».  c.  sub  nom.  Armitage  <  5  Car.  &  P.  375. 

V.  Grand  Junction  R.  Co.,  6  Dowl.  P.  C.  340.  »  5  la.  421. 


276  IMPUTED    NEGLIGENCE. 


Thorogood  v.  Bryan. 


tible  to  the  wrongful  act  of  the  defendant.  BuUerjiekl  v.  Forrester  was 
the  first  case  in  which  this  doctrine  was  discussed.  It  was  there  held 
that  one  who  is  injured  by  an  obstruction  in  the  highway,  against  which 
he  fell,  cannot  maintain  an  action  if  it  appear  that  he  was  riding  witli 
great  violence  and  want  of  ordinary  care,  without  which  he  might  have 
seen  and  avoided  the  obstruction.  "A  party,"  says  Lord  Ellekbor- 
OUGH,  "is  not  to  cast  himself  upon  an  obstruction  which  has  been  made 
by  the  fault  of  another,  and  avail  himself  of  it,  if  he  do  not  himself  use 
common  and  ordinary  caution  to  be  in  the  right."  [V.  Williams,  J.  — 
The  objection  to  the  summing  up  applies  to  that  part  of  it  which  relates 
to  the  want  of  care  and  caution  on  the  part  of  the  driver  of  Barber's 
omnibus.  I  acted  upon  the  dictum  of  the  Court  of  Exchequer  in 
Bridge  v.  The  Grand  Junction  Raihvay  Company.  If  that  be  correct,  I 
was  right.]  That  was  an  action  upon  the  case  for  the  negligent  man- 
agement of  a  train  of  railway  carriages,  whereby  it  ran  against  another 
train,  in  one  of  the  carriages  of  which  the  plaintiff  was,  and  injured 
him.  The  defendants  pleaded  that  the  parties  having  the  management 
of  the  train  in  which  the  plaintiff  was,  managed  it  so  negligentl}'  and 
improperly  that,  in  part  by  their  negligence,  the  defendant's  train  ran 
against  the  other,  and  caused  the  injuries  to  the  plaintiff.  The  court 
held  the  plea  bad,  both  in  form  and  in  substance.  And  Parke,  B., 
says:  "The  rule  of  law  is  laid  down  with  perfect  correctness  in  the 
case  of  Butterjield  v.  Forrester,  and  that  rule  is,  that,  although  there 
may  have  been  negligence  on  the  part  of  the  plaintiff,  yet,  unless  he 
might,  by  the  exercise  of  ordinary  care,  have  avoided  the  consequences 
of  the  defendant's  negligence,  he  is  entitled  to  recover ;  if  by  ordinary 
care  he  might  have  avoided  them,  he  is  the  author  of  his  own  wrong. 
That  is  the  only, way  in  which  the  rule  as  to  the  exercise  of  ordinary 
care  is  applicable  to  questions  of  this  kind."  That  case  is  followed 
hy  Davies  v.  Mann.^  There,  the  defendant  negligently  drove  his  horses 
and  wagon  against  and  killed  an  ass,  which  had  been  left  in  the  high- 
way fettered  in  the  fore  feet,  and  thus  unable  to  get  out  of  the  wa}'  of 
the  wagon,  which  was  going  at  a  "  smartish  "  pace  along  the  road  ;  and 
it  was  held  that  the  jury  were  properly  directed  that,  although  it  was  an 
illegal  act  on  the  part  of  the  plaintiff  so  to  put  the  animal  on  the  high- 
way, the  plaintiff  was  entitled  to  recover.  And  Parke,  B.,  said: 
"This  subject  was  fully  considered  by  this  court  in  Bridge  v.  The 
Grand  Juyiction  Railway  Company,  where,  as  appears  to  me,  the  correct 
rule  is  laid  down  concerning  negligence,  viz.,  that  the  negligence  which 

I  10  Mee.  &  W.  546. 


PASSENGER  CHARGEABLE  WITH  CARRIER'S  NEGLIGENCE.       277 

English  Court  of  Common  Pleas. 

is  to  preclude  a  plaintiff  from  recovering  in  an  action  oi  this  nature 
must  be  such  as  that  he  could,  by  ordinary  care,  have  avoided  the  con- 
sequences of  the  defendant's  negligence.  In  that  case,  there  was  a  plea 
imputing  negligence  on  both  sides:  here,  it  is  otherwise  ;  and  the  judge 
simply  told  the  jury  that  the  mere  fact  of  negligence  on  the  part  of  the 
plaintiff  in  leaving  his  donkey  on  the  public  highway  was  no  answer  to 
the  action,  unless  the  donkey's  being  there  was  the  immediate  cause  of 
the  injury ;  and  that,  if  they  were  of  opinion  that  it  was  caused  by  the 
fault  of  the  defendant's  servant  in  driving  too  fast,  or,  which  is  the 
same  thing,  at  a  smartish  pace,  the  mere  fact  of  putting  the  ass  upon 
the  road  would  not  bar  the  plaintiff  of  his  action.  All  that  is  perfectly 
correct ;  for,  although  the  ass  may  have  been  wrongfully  there,  still  the 
defendant  was  bound  to  go  along  the  road  at  such  a  pace  as  would  be 
likely  to  prevent  mischief.  Were  this  not  so,  a  man  might  justify  the 
driving  over  goods  left  on  a  public  highway,  or  even  over  a  man  lying 
asleep  there,  or  the  purposely  running  against  a  carriage  going  on  the 
wrong  side  of  the  road."  [Cresswell,  J.  —  Must  not  the  negligence 
which  is  to  exonerate  the  defendant  be  negligence  of  the  plaintiffs  or  of 
his  agent  ?]  It  is  submitted  not ;  at  all  events,  the  driver  of  the  omni- 
bus in  which  the  deceased  was  a  passenger  must  be  taken  to  be  his 
agent.  [Cresswell,  J.  —  Suppose  two  omnibuses  are  racing,  and  one 
of  them  runs  over  a  man  who  is  crossing  the  road  and  has  not  time  to 
get  out  of  the  way,  has  not  the  injured  party  a  remedy  against  the 
proprietor  of  either  omnibus?]  No  doubt  he  has.  [Cresswell,  J. — 
It  seems  strange  to  say  that  A.  shall  not  be  responsible  for  his  negli- 
gence because  B.  has  been  negligent  likewise,  C.  being  the  party 
injured.  The  principle  of  Butterjield  v.  Forrester  is,  that  one  who 
receives  an  injur}'  from  the  negligent  act  of  another,  shall  not  have  an 
action  if  by  the  exercise  of  ordinary  care  he  might  have  escaped  the 
injury.]  It  is  not  necessary  in  this  case  to  contend  for  a  proposition  so 
wide  as  that  suggested.  The  point  did  not  arise  in  Bridge  v.  Grand 
Junction  Rdilivay  Comjoany.  [Cresswell,  J.  —  It  could  not;  the  plea 
amounted  to  not  guilty,  or  nothing.] 

Humphrey  (with  whom  was  Cobbett),  in  support  of  the  rule.  —  Bridge 
v.  The  Grand  Junction  Railway  Company  does  not  apply.  It  was  enough 
there  to  decide  that  the  plea  was  bad  in  point  of  form  ;  but  the  court 
go  on  to  say,  unnecessaril}-,  that  it  is  also  bad  in  substance.  Adopting 
the  suggestion  of  Parke,  B.,  in  that  case,  the  learned  judge  upon  this 
occasion  told  the  jury,  that  if,  in  their  opinion,  the  accident  might  have 
been  avoided  by  the  exercise  of  ordinary  care  on  tlie  part  of  the  de- 
ceased, or  of  the  driver  of  the  omnil)US  in  which  ho  was,  the  defendiint 


278  IMPUTED    NEGLIGENCE. 


Thorogood  v.  Bryan. 


was  entitled  to  their  verdict.  [Cresswell,  J. — It  appears  that  the 
deceased  got  out  whilst  the  omnibus  was  moving;  and,  consequentl\% 
he  had  not  sufficient  command  of  his  legs  to  be  able  to  get  out  of  the 
wa}'  of  the  defendant's  omnibus,  the  driver  of  which  could  not  reason- 
ably be  expected  to  be  prepared  for  such  a  state  of  things.]  If  the 
fact  were  so,  no  ordinary  care  on  Thorogood's  part  could  have  saved 
him.  [Cresswell,  J. — What  degree  of  caution  could  have  enabled  tlie 
driver  of  Barber's  omnibus  to  avoid  the  accident?]  It  is  enough  to 
show  that  there  might  be  a  stale  of  things  which  makes  the  direction 
wrong.  We  may  assume  that  the  deceased  was  in  the  right,  and  the 
drivers  of  both  omnibuses  wrong.  [Cresswell,  J.  — Wrong  in  what?] 
In  omnibus.  It  would  be  monstrous  to  say  that  the  plaintiff  is  without 
remedy  against  either  party.  Put  the  case  of  a  passenger  on  board  a 
steamboat,  silting  in  a  place  appropriated  for  passengers,  and  getting 
his  leg  broken  by  another  steamboat  coming  in  collision  with  them,  — 
what  remedy  would  he  have  against  the  proprietors  of  the  boat  he  was 
on  board  of?  [V.  Willtams,  J. — A  coachman  is  responsible  to  his 
master  for  the  due  management  of  the  carriage  in  which  he  is  driven  by 
him.  Suppose  the  master  injured  by  the  coachman's  want  of  care, 
though  bj^  an  accident  which  would  not  have  happened  but  for  the 
want  of  proper  care  on  the  part  of  a  third  person,  —  would  the  coach- 
man be  liable  ?]  It  is  submitted  that  he  would.  The  rule  as  laid  down 
in  Butterjield  v.  Forrester,  and  followed  in  Bridge  v.  The  Grand  Junction 
Railway  Company  and  Davies  v.  Mann,  is  not  so  large  as  the  summing 
up  in  this  case  assumes.  The  negligence,  to  operate  an  excuse,  must  be 
negligence  in  the  particular  thing  which  leads  to  the  accident. 

The  court,  before  pronouncing  judgment  in  this  case,  desired  to  hear 
the  argument  of  Cattlin  v.  Hills,  a  case  involving  very  much  the  same 
question. 

Cur.  adv.  vult. 

[Omitting  the  statement  of  facts  in  the  case  of  Cattlin  v.  HMls,  which 
was  compromised,  no  judgment  being  x-endered  in  it.] 

CoLTMAN,  J.  — The  case  of  Thorogood  v.  Bryan  seems  distinctly  to 
raise  the  question  whether  a  passenger  in  an  omnibus  is  to  be  considered 
so  far  identified  with  the  owner  that  the  neghgence  on  the  part  of  the 
owner,  or  his  servant,  is  to  be  considered  neghgence  of  the  passenger 
himself.  As  I  understand  the  law  upon  this  subject,  it  is  this:  that  a 
party  who  sustains  an  injury  from  the  careless  or  negligent  driving  of 
another  may  maintain  an  action,  unless  he  has  himself  been  guilty  of 
such  neghgence  or  want  of  due  care  as  to  have  contributed  or  conduced 
to  the  injury.     In  the  present  case,  the  negligence  that  is  relied  on  as 


PASSENGER  CHARGEABLE  WITH  CARRIER'S  NEGLIGENCE.       279 

English  Court  of  Common  Pleas. 

an  excuse  is  not  the  personal  negligence  of  the  party  injured,  but  the 
negligence  of  the  driver  of  the  omnibus  in  which  he  was  a  passenger. 
But  it  appears  to  me,  that,  having  trusted  the  party  by  selecting  the  par- 
ticular conveyance,  the  plaintiff  has  so  far  identified  himself  with  the 
ownei-  and  her  servants,  that,  if  any  injury  results  from  their  negligence, 
he  must  be  considered  a  party  to  it.  In  other  words,  thevpassenger  is 
so  far  identified  with  the  carriage  in  which  he  is  travelHng,  that  want  of 
care  on  the  part  of  the  driver  will  be  a  defence  of  the  driver  of  the  car- 
riage which  directly  caused  the  injury.  That  being  so,  the  summing  up 
in  this  case  —  which  is  in  accordance  with  the  opinion  expressed  by  the 
Court  of  Exchequer  in  Bridge  v.  The  Grand  Junction  Railioay  Company, 
though  not  in  terms  with  the  decision  of  that  case  —  was  correct.  I 
therefore  think  the  verdict  should  stand  undisturbed. 

Maule,  J.  —  I  agree  with  my  brother  Coltman  in  thinking  that  the 
rule  in  Thorogood  v.  Bryan  ought  to  be  discharged.  This  is  an  action 
brought  to  recover  damages  against  an  omnibus  proprietor,  for  negli- 
gently causing  the  death  of  the  plaintiff's  husband  by  knocking  him 
down  and  driving  over  him,  as  he  had  just  alighted  from  another  omni- 
bus. My  brother  Williams,  in  leaving  the  case  to  the  jury,  told  them, 
that,  if  they  should  be  of  opinion  that  the  occurrence  was  purely  acci- 
dental, or  that  the  deceased,  or  the  driver  of  the  omnibus  by  whicli 
he  was  carried,  had  by  any  negligence  or  want  of  care  on  their  part 
contributed  to  the  accident,  they  must  find  for  the  defendant.  The 
jury  having,  upon  that  direction,  found  for  the  defendant,  it  must  be 
assumed  that  tliey  found  that  there  had  been  negligence  on  tlie  part  of 
the  driver  of  the  omnibus  in  which  he  was  a  passenger.  This  case  is  an 
important  one,  inasmuch  as  it  is  in  some  degree  novel,  though  some 
what  similar  in  principle  to  Bridge  v.  The  Grand  Junction  Raihuay 
Company,  where,  in  a  case  against  a  railway  company  for  the  negligent 
management  of  a  train,  whereby  it  ran  against  another  train,  in  which 
the  plaintiff  was  a  passenger,  and  injured  him,  a  plea  that  the  persons 
having  the  management  of  the  train  in  which  the  plaintiff  was,  man- 
aged it  so  negligently  and  improperly  that,  in  part  by  their  negligence, 
the  defendant's  train  did  the  mischief,  was  held  bad.  The  Court  of 
Exchequer  there  seem  to  have  thought  (though  it  was  not  necessary  to 
decide  it)  that  where  there  is  negligence  on  both  sides,  the  action  cannot 
be  maintained.  Although  I  at  one  time  entertained  a  contrary  impres- 
Hion,  upon  further  consideration  I  incline  to  think  that  for  this  pur- 
[)ose  the  deceased  must  be  considered  as  identified  with  the  driver  of 
the  omnibus  in  which  he  voluntarily  l)ecame  a  passenger,  and  tliat  the 
negligence  of  the  driver  was  tlie  negligence  of  the  deceased.     If  the 


iJSO  IMPUTED    NEGLIGENCE. 


Thorogood  v.  Bryan. 


deceased  himself  had  been  driving,  the  case  would  have  been  quite  free 
from  doubt.  So,  there  could  have  been  no  doubt  had  the  driver  been 
employed  to  drive  him,  and  no  one  else.  On  the  part  of  the  plaintiff  it 
is  suggested  that  a  passenger  in  a  public  conveyance  has  no  control  over 
the  driver.  But  I  think  that  cannot  with  propriety  be  said.  He  selects 
the  conveyai^te.  He  enters  into  a  contract  with  the  owner,  whom,  b}' 
his  servant  the  driver,  he  employs  to  drive  him.  If  he  is  dissatisfied 
with  the  mode  of  conveyance,  he  is  not  obliged  to  avail  himself  of  it. 
According  to  the  terms  of  his  contract,  he  unquestionably  has  a  remedy 
for  any  negligence  on  the  part  of  the  person  with  whom  he  contracts  for 
the  journey.  It  is  somewhat  remarkable  that  actions  of  this  sort  are 
almost  invariably  brought  against  the  rival  carriage  or  vessel,  which 
is  only  to  be  accounted  for  by  that  party  spirit  which  more  or  less 
enters  into  every  transaction  of  life.  If  there  is  negligence  on  the 
part  of  those  who  have  contracted  to  carry  the  passengers,  those  who 
are  injured  have  a  clear  and  undoubted  remedy  against  them.  But  it 
seems  strange  to  say,  that,  although  the  defendant  would  not,  under 
the  circumstances,  be  liable  to  the  owner  of  the  other  omnibus  for  any 
damage  done  to  his  carriage,  he  still  would  be  responsible  for  an  injury 
done  to  a  passenger.  The  passenger  is  not  without  remedy.  But,  as 
regards  the  present  defendant,  he  is  not  altogether  without  fault.  He 
chose  his  own  conve^'ance,  and  must  take  the  consequences  of  any 
default  of  the  driver  whom  he  thought  fit  to  trust.  For  these  reasons, 
it  seems  to  me  that  the  direction  of  my  brother  Williams  was  quite  cor- 
rect, and  that  the  rule  should  be  discharged. 

Cresswell,  J.  —  I  am  of  the  same  opinion.  I  must  own  I  should 
not  have  been  sorry  if  the  point  could  have  been  raised  upon  a  bill 
of  exceptions.  The  subject  is  an  important  one,  and  ought  to  be  defin- 
itively set  at  rest.  I  incline  to  think  that  the  opinion  thrown  out  by  the 
Court  of  Exchequer  in  Bridge  v.  The  Grand  Junction  Railway  Com- 
pany is  the  correct  one.  If  the  driver  of  the  omnibus  the  deceased  was 
in  had  by  his  negligence  or  want  of  due  care  and  skill  contributed  to 
any  injury  from  a  collision,  his  master  clearly  could  maintain  no  action  ; 
and  I  must  confess  I  see  no  reason  why  a  passenger  who  employs  the 
driver  to  convey  him  stands  in  any  better  position.  For  these  reasons, 
I  think  that  the  plaintiff  in  this  case  was  not  entitled  to  recover. 

V.  Williams,  J.  — I  am  of  the  same  opinion.  I  think  the  passenger 
must,  for  this  purpose,  be  considered  as  identified  with  the  person  hav- 
ing the  management  of  the  omnibus  he  was  conveyed  by. 

Mule  discharged. 


PASSENGER  NOT  CHARGEABLE  WITH  CARRIER'S  NEGLIGENCE.      281 


Supreme  Court  of  New  Jersey. 


2.  THIS   DOCTRINE   DENIED. 

Bennett  v.  New  Jersey  Railroad  and  Transportation  Com- 
pany.* 

Supreme  Court  of  New  Jersey^  1873. 

Hon.  M»RCER  Beasley,  Chief  Justice. 

"  Joseph  D.  Bedle, 

'*  Vancleve  Dalrimple, 

♦'  George  S.  Woodhull,! 

"  David  A.  Depue, 

"  Bennet  Van  Syckle,! 

"  Edward  W.  Scudder,! 


Judges 


1.  Tborog'ood  v.  Bryan  denied.  —  The  driver  of  a  street  car  is  not  the  agent  of  a  passen- 

ger therCon,  so  as  to  render  such  passenger  chargeable  with  the  negligence  of  such 
driver. 

2.  Case  in  Judg'ment.  —  Where  a  passenger  on  a  street  car  is  injured  by  the  carelessness 

of  the  engineer  of  a  railroad  company  in  the  management  of  a  locomotive,  it  is  no 
defence  that  there  was  contributory  negligence  in  the  driver  of  the  street  car. 

On  rule  to  show  cause,  etc.  Argued  at  February  Term,  1873,  before 
Beasley,  C.  J.,  and  Justices  Bedle,  Dalrijmple,  and  Depue. 

Leon  Abbett,  for  plaintiff  ;  J.   W.  Scudder,  for  defendants. 

The  opinion  of  the  court  was  delivered  by — 

Beasley,  C.  J. — The  cars  of  the  Jersey  City  and  Bergen  Railroad 
Company,  in  crossing  the  track  of  the  defendants,  the  New  Jersey 
Railroad  and  Transportation  Company,  were  struck  by  the  locomotive 
of  the  latter  company.  At  the  time  of  this  occurrence  the  plaintiff 
was  a  passenger  in  the  horse-car,  and  was  considerably  injured  by  the 
collision.  The  jury  found  the  servants  of  the  defendants  in  fault,  and 
gave  the  plaintiff  $5,000  damages.  The  case  stands  before  this  court 
on  a  motion  for  a  new  trial,  founded  on  two  grounds :  first,  for  a  mis- 
direction in  matter  of  law  at  the  cix'cuit;  and,  second,  because  the 
damages  are  excessive. 

The  question  of  law  then  presented  is  this:  the  defendants,  at  the 
trial,  contended  that  there  was  evidence  tending  to  show  neghgence  in 
the  servants  of  the  horse-car  company,  which  negligence  was,  in  part, 
productive  of  the  accident,  and  requested  the  judge  who  presided  to 
charge  the  jury  that  if  this  was  so,  the  plaintiff  was  not  entitled  to 

•  Reported,  36  N.  J.  L.  225.  t  Not  sitting  in  this  case. 


282  IMPUTED    NEGLIGENCE. 


Bennett  v.  New  Jersey  Railroad  and  Transportation  Company. 

recover.  The  proposition  claimed  to  be  law  is,  that  when  a  passenger 
enters  a  public  conveyance  he  in  some  sort  becomes  affected  by  the 
negligence  of  the  agents  of  those  in  charge  of  such  conveyance,  at 
least  to  the  extent  of  debarring  him  from  suits  against  third  parties  for 
injuries  occasioned  by  the  joint  carelessness  of  such  third  parties  and 
that  of  the  servants  having  the  control  of  the  vehicle  in  which  he  is 
riding. 

This  position  has  for  its  support  the  case  of  Thorogood  v.  Bryant 
The  authority  is  in  every  respect  in  point.  The  suit  was  by  the  repre- 
sentatives of  a  person  who  had  been  run  over  and  killed.  The  deceased 
was  a  passenger  in  an  omnibus,  and  in  getting  out  had  been  run  over 
by  the  omnibus  of  the  defendant.  The  judge  trying  the  cause  chargefl 
the  jury,  that,  if  any  want  of  care  on  the  part  of  the  driver  of  the  omni- 
bus in  which  the  deceased  was  a  traveller  had  been  conducive  to  the 
injury,  their  verdict  must  be  for  the  defendant.  The  ruling  was 
approved  of  by  the  court  in  banc. 

This  case  stands,  I  think,  in  point  of  principle,  alone  in  the  line  of 
English  decisions,  and  the  grounds  upon  which  it  rests  seem  to  me 
inconsistent  with  familiar  rules.  The  reason  given  for  the  judgment 
is,  that  a  passenger  in  the  omnibus  "  must  be  considered  as  identified 
with  the  driver  of  the  omnibus  in  which  he  voluntarily"  becomes  a  pas- 
senger, and  that  the  negligence  of  the  driver  is  the  negligence  of  the 
passenger.  But  I  have  entirely  failed  to  perceive  how  it  is  that  the  pas- 
senger in  a  public  conveyance  becomes  identified,  in  any  legal  sense, 
with  the  driver  of  such  conveyance.  Such  identification  could  result 
only  in  one  way :  that  is,  by  considering  such  driver  the  servant  of  the 
passenger.  I  can  see  no  ground  upon  which  such  a  relationship  is  to 
be  founded.  In  a  practical  point  of  view,  it  certainly  does  not  exist. 
The  passenger  has  no  control  over  the  driver  or  agent  in  charge  of  the 
vehicle.  And  it  is  this  right  to  control  the  conduct  of  the  agent,  which 
is  the  foundation  of  the  doctrine  that  the  master  is  to  be  affected  by  the 
acts  of  his  servant.  To  hold  that  the  conductor  of  a  street  car  or  of  a 
railroad  train  is  the  agent  of  the  numerous  passengers  who  may  chance 
to  be  in  it,  would  be  a  pure  fiction.  In  reality  there  is  no  such  agency, 
and  if  we  impute  it,  and  correctly  apply  legal  principles,  the  passenger, 
on  the  occurrence  of  an  accident  from  the  carelessness  of  the  person  in 
charge  of  the  vehicle  in  which  he  is  being  conveyed,  would  be  without 
any  remedy.     It  is  obvious,  in  a  suit  against  the  proprietor  of  the  car  in 

I  8  0.  B.  116;  ».  c.  ante,  p.  273. 


PASSENGER  NOT  CHARGEABLE  WITH  CARRIER'S  NEGLIGENCE.      283 


Supreme  Court  of  New  Jersey. 


which  he  was  a  passenger,  there  could  be  no  recover}'  if  the  driver  or 
conductor  of  such  car  is  to  be  regarded  as  the  servant  of  the  passenger. 
And  so,  on  the  same  ground,  each  passenger  would  be  liable  to  every 
person  injured  by  the  carelessness  of  such  driver  or  conductor ;  because, 
if  the  negligence  of  such  agent  is  to  be  attributed  to  the  passenger  for 
one  purpose,  it  would  be  entirely  arbitrary  to  say  that  he  is  not  to  be 
affected  by  it  for  other  purposes.  And  yet  it  is  to  be  presumed  that  no 
court  would  go  this  length,  and  impose  on  each  person  being  carried  by 
a  railroad  train  responsibility  for  the  misconduct  of  the  engineer  or  con- 
ductor of  such  train.  The  doctrine  of  the  English  case  appears  to  con- 
vert the  driver  of  the  omnibus  into  the  servant  of  the  passenger  for  the 
single  purpose  of  preventing  the  passenger  from  bringing  suit  against  a 
third  party,  whose  negligence  has  cooperated  with  that  of  the  driver  in 
the  production  of  the  injury.  I  am  compelled  to  dissent  from  such  a 
proposition.  Under  the  circumstances  in  question,  the  passenger  is  a 
perfectly  innocent  party,  having  no  control  over  either  of  the  wrong- 
doers ;  and  I  can  see  no  reason  why,  according  to  the  usual  rule,  an 
action  will  not  lie  in  his  behalf  against  either  or  both  of  the  employers 
of  such  wrong-doers. 

Nor  do  I  think  that  in  the  English  courts  it  is  considered  that  the  case 
of  Thorogood  v.  Bryan  has  settled  the  rule  of  law. 

The  question  involved  in  it  was  decided  on  a  rule  to  show  cause,  a 
.  circumstance  which  was  regretted  by  one  of  the  judges,  who  said  that 
the  subject  was  an  important  one  and  ought  to  be  definitively  set  at 
rest.  The  case  itself  was  disparagingly  criticised  in  the  fourth  edition 
of  Smith's  Leading  Cases  ;^  and  this  criticism  has,  on  two  occasions  at 
least,  been  referred  to  by  the  English  courts  with  marked  respect.^  From 
these  considerations,  this  case  does  not  bear  the  weight  which  a  deliber- 
ate decision  of  the  Court  of  King's  Bench  ordinarily  carries  with  it. 
The  doctrine  of  the  case  has,  however,  been  adopted  in  Pennsylvania,^ 
but  has  been  repudiated  in  New  York."* 

The  result  is,  that  in  the  present  case  the  jury  was  rightly  instructed 
that  the  carelessness  of  the  driver  of  the  street  car  in  which  the  plaintiff 
was  a  passenger  could  not  affect  the  suit,  or  bar  the  plaintiff's  right  to 
recover  for  the  negligence  of  the  defendant. 

Bule  discharged. 

1  Yoi  i^  p  220.  '  Lockhart  v.  Lichtenthaler,  46  Pa.  St.  152. 

'  Tuff   V.  Warman,  2   C.  B.   (W.  8.)   760;  ♦  Chapman  v.  New  Haven  R.  Co.,  19  N.  Y. 

Waite  V.  North-Eastern   R.  Co.,  El.  Bl.  ft  841;  Webster  v.  Hudson  etc.  E.  Co.,  38  N.  Y. 

El.  728.  260. 


2^4  IMPUTED    NEGLIGENCE. 


Notes. 


NOTES. 

§  1.  Imputed  Negligence  —  Proper  Scope  of  the  Rule.  —  The  reasonableness 
of  the  rule  of  imputed  negligence  will  hardly  be  questioned  where  the  person  to 
whom  the  negligence  of  another  is  imputed  has  control,  management,  or 
advisory  power  over  the  conduct  of  such  negligent  person ;  ^  or  where,  from  the 
necessity  of  the  case,  such  negligent  person  is  by  lawful  authority  vested  with 
the  control  and  direction  of  the  movements  of  the  person  to  whom  his  negli- 
gence is  imputed ;  ^  or  where  the  plaintiff  sues  in  a  representative  capacity  for 
injuries  causing  the  death  of  his  negligent  intestate ; '  or  where  the  plaintiff 
sues  for  the  loss  of  services,  etc.,  of  the  negligent  and  injured  person;*  or 
where  the  plaintiff  has  intrusted  his  chattel  to  another,  whose  negligence  con- 
curs with  that  of  the  defendant  in  producing  an  injury  to  it.  To  illustrate :  The 
OAvner  of  a  horse,  who  lends  him  without  hire,  cannot  recover  for  his  death  in 
consequence  of  an  unsafe  roadway,  if  the  negligence  of  the  borrower  contrib- 
uted to  the  accident.^  Neither  can  the  owner  of  a  wagon  recover  for  an  injury 
done  to  his  vehicle  by  colliding  with  another,  if  his  driver's  want  of  ordinary 
care  contributed  to  produce  the  collision.^  So,  where  the  plaintiff,  pursuant  to 
a  contract,  furnished  a  person  a  team  to  be  used  in  farming  the  lands  of  the 
former  for  the  joint  benefit  of  the  parties,  and  such  person,  while  so  using  the 
team,  carelessly  left  it  unfastened  while  he  voluntarily  engaged  in  a  personal 
encounter  with  a  third  person,  near  to  the  horses,  by  which  circumstance  the 
team  became  frightened  and  ran  off,  and  one  was  killed,  it  was  held  that  the 
want  of  care  on  the  part  of  the  custodian  of  the  animals,  being  a  proximate 
cause  of  the  injury,  would  prevent  a  recovery  therefor  in  an  action  by  the  owner 
against  such  third  person.' 

§  2.  Thorogood  v.  Bryan  doubted.  —  It  is  not  perceived  that  this  rule  can, 
with  any  degi'ee  of  justice  or  reason,  be  extended  beyond  the  limits  just  indicated. 
It  seems  scarcely  to  admit  of  doubt  that  the  application  which  the  rule  received 
in  the  case  of  Thorogood  v.  Bryan^  is  open  to  criticism  and  to  positive  objection. 
It  was  in  this  case  that  the  rule  was  first  announced  (though  previously  hinted  at ') 
in  unqualified  form,  that  a  passenger  is  so  far  identified  with  the  carrier  and  his 
servants,  that  if  any  injury  results  from  their  negligence,  he  must  be  considered 
a  party  to  it,  and  accordingly  disentitled  to  recover.  It  is  seldom  that  a  rule  of 
law  is  declared,  so  palpably  fraught  with  injustice  and  so  easily  demonstrable  to 
be  fallacious,  or  arbitrary  and  anomalous.     The    strong  common-sense  of   at 

«  Chapman  v.  New  Haven  R.  Co.,  19  N.  Y.  s  Forks  Township  v.  King,  84  Pa.  St.  230. 

341,344.  8  Mabley  v.  Kittleberger,    37   Mich.    360. 

2  Waite  V.  North-Eastern  R.  Co.,  El.  Bl.  See  also  Smith  v.  Smith,  2  Pick.  621. 

&  El.  719;  2  Thomp.  on  Neg.,  p.  11S2,  §  32  '  Puteibaugh  v.  Reasor,  8  Ohio  St.  484. 

et  ieq.  See  also  Stiles  v.  Geesey,  71  Pa.  St.  439. 

s  2  Thomp.  on  Neg.,  p.  1279,  §  80.  .8  Ante,  p.  273. 

<  Cleveland  etc.  R.  Co.  v.  Terry,  8  Ohio  ^  Bridge  v.  Grand  Junction  R.  Co.,3Mee. 

St.  570;  Bellefontaine  etc.  R.  Co.  v.  Snyder>  &  W.  244.    See  also  Vanderplank  v.  Miller, 

24  Ohio  St.  670.  Moo.  &  M.  169. 


PASSENGER  NOT  CHARGEABLE  WITH  CARRIER'S  NEGLIGENCE.      285 


Thorogood  v.  Bryan  not  followed. 


least  one  English  judge  has  more  than  once  led  him  to  suggest  that  the  case 
ought  not  to  be  regarded  as  binding  authority.  In  the  course  of  the  argument 
of  Tuff  V.  Warman  in  the  Court  of  Common  Pleas,  when  this  case  was  cited 
by  counsel,  Williams,  J.,  interrupted  the  argument  by  saying,  "That  case  has 
been  made  the  subject  of  some  damaging  remarks  in  the  last  edition  of  Smith's 
Leading  Cases."  ^  Again,  in  the  argument  of  Waite  v.  North-Eastern  Eaihcay 
Company  in  the  Exchequer  Chamber,  under  similar  circumstances  he  made  sub- 
stantially the  same  observation.^ 

Dr.  LusHiXGTOX,  Judge  of  the  High  Court  of  Admiralty,  in  the  course  of  an 
opinion,^  thus  remarked  upon  this  case:  "The  case  of  Thorogood  v. Bryan,  it  is 
said,  has  laid  down  a  rule  to  the  contrary.  With  due  respect  to  the  judges  who 
decided  that  case,  I  do  not  consider  that  it  is  necessary  for  me  to  dissect  the 
judgment,  but  I  decline  to  be  bound  by  it,  because  it  is  a  single  case;  because  I 
know,  upon  inquii-y,  that  it  has  been  doubted  by  high  authority;  because  it 
appears  to  me  not  reconcilable  with  other  principles  laid  down  at  common  law ; 
and  lastly,  because  it  is  directly  against  Say  v.  Le  Neve,*  and  the  ordinary  prac- 
tice of  the  Court  of  Admiralty." 

§  3.  Thorogood  v.  Bryan  not  followed,  —  In  addition  to  the  foregoing  expres- 
sions of  disapproval  of  Thorogood  v.  Bryan,  there  are  two  other  English  cases, 
determined  the  year  following,  which  show  that  the  principle  of  this  case  had 
not  then  taken  a  very  firm  root  in  the  judicial  mind.  In  Rigby  v.  Hewitt,^  it 
appeared  that  the  plaintiff  was  a  passenger  on  the  outside  of  an  omnibus,  which, 
just  before  the  accident,  had  started  from  the  same  place  as  the  defendant's  om- 
nibus, and  at  the  same  time.  The  drivers  were  competing  for  passengers,  each 
endeavoring  to  secure  the  lead ;  and  while  the  omnibuses  were  going  at  great 
speed,  in  trying  to  avoid  a  cart  which  was  in  the  way,  the  wheel  of  the  defend- 
ant's omnibus  came  in  contact  with  a  projecting  step  of  the  omnibus  on  which  the 
plaintiff  was  riding,  which  caused  the  latter  to  swing  towards  the  curbstone. 
The  speed  with  which  it  was  going  rendered  it  impossible  for  the  driver  to  pull 
up.    The  seat  on  which  the  plaintiff  sat  struck  against  a  lamp-post,  and  he  was 

1  2  C.  B.  (N.  s.)  750.    The  remarks  to  which  soning  of  the  court  in  that  case  is  consistent 
the  learned  judge  made  reference  are  found  with  those  of  Kigby  v.  Hewitt,  5  Exch.  240, 
in  a  note  to   Ashby  v.  White,  in  the  sixth  and  Greenland  v.  Chaplin,  5  Exch.  243,  or 
American  edition  of  Smith's  Leading  Oases,  with  the  series  of  decisions  from  Quarman 
in  Vol.  I.,  at  p.  430.    They  are  as  follows:  v.  Burnett,  6  Mee.  &  W.  599,  to  Reedie  v. 
"If  two  drunken  stage-coachmen  were  to  London  etc.  R.  Co.,  4  Exch.  244,  and  Dalycll 
drive  their  respective  carriages  against  each  v.  Tyrer,  28  L.  J.  (Q.  B.)  52.    Why  in  this  par- 
other,    and    injure    the    passengers,    each  ticular  case  both  wrong-doers  should  not  be 
would  have  to  bear  the  injury  to  his  own  considered  liable  to  a  person  free  from  all 
carringc,  no  doubt;  but  it  seems  highly  un-  blame,  not  answerable  for  the  acts  of  either 
reasonable    that   each     set   of    passengers  of  them,  and  whom  they  have  both  injured, 
should,  by  a  fiction,  be  identified  with  the  is  a  question  which  seems  to  deserve  more 
coachman  who  drove    them  so,  as  to    be  consideration  tiian  it  received  in  Thorogood 
restricted   for  remedy   to    actions    against  v.  Bryan." 
their    own    driver  or  his   employer.    This,  =  El.  Bl.  &  El.  728. 
nevertheless,  ajipears  to  be  the  result  of  the  '  The  Milan,  1  Lush.  388,  403. 
decision  in  Thorogood  v.  Bryan,  8  C.  B.  115;  *  2  Shaw's  Sc.  App.  405. 
but  it  may  be  questioned  whether  the  rea-  '  5  Exch.  240. 


286  IMPUTED    NKGHGEJNCE. 


Notes. 


thrown  off.  The  learned  judge  told  the  jury  that  the  plaintiff  was  not  disentitled 
to  recover  morelj^  because  the  omnibus  on  which  he  sat  was  driven  at  a  furious 
rate,  and  that  if  the  jury  thought  that  the  collision  took  place  from  the  negli- 
gence of  the  driver  of  the  defendant's  omnibus,  and  that  the  other  omnibus  was 
not  in  fault  in  not  endeavoring  to  avoid  the  accident,^  then  the  defendant  was 
liable.  The  jury  having  found  for  the  plaintiff,  the  counsel  for  the  defendant 
moved  for  a  new  trial,  on  the  ground  of  misdirection.  The  Court  of  Exchequer 
decided  that  there  was  no  fault  to  be  found  with  the  direction  of  the  trial  judge. 
Again,  in  Greenland  v.  Chaplin^  the  rule  was  not  applied.  In  this  case,  the 
plaintiff  was  a  passenger  on  a  steamboat  called  the  Sons  of  the  Thames.  The 
defendant's  steamboat,  called  the  Bachelor,  struck  the  flrst-named  vessel  on  the 
bow,  where  its  anchor  was  carried,  which  being  thereby  dislodged,  fell  upon  and 
broke  the  plaintiff's  leg.^  Pollock,  C.  B.,  told  the  jury,  that,  if  they  were  of 
opinion  that  the  collision  was  owing  to  the  bad  navigation  of  the  Bachelor,  they 
should  find  a  verdict  for  the  plaintiff ;  but  if  they  thought  that  there  was  any 
negligence,  either  in  the  stowage  of  the  anchor  or  in  the  plaintiff  putting  himself 
in  the  place  where  he  was  on  board  the  Sons  of  the  Thames,  they  should  find 
for  the  defendant.  The  jury  having  found  a  verdict  for  the  plaintiff,  the  counsel 
for  the  defendant  obtained  a  rule  nisi  to  set  aside  the  verdict,  as  against  the  evi- 
dence, no  objection  being  taken  to  the  mode  in  which  the  question  was  left  to 
the  jury.  In  the  Court  of  Exchequer,  Pollock,  C.  B.,  expressed  the  judgment 
of  all  the  judges  in  saying  that  the  verdict  of  the  jury  was  satisfactory.  A  por- 
tion of  his  opinion  is  quite  noteworthy.  He  said:  "  My  brother  Shee  contended 
that  the  accident  in  part  arose  from  the  negligent  stowage  of  the  anchor,  and 
from  the  plaintiff  being  in  a  part  of  the  vessel  where  he  ought  not  to  have  been. 
But  the  jury  negatived  both  these  propositions,  and  found  a  verdict  for  the  plain- 
tiff, notwithstanding  I  told  them,  no  doubt  incorrectly,  that,  if  they  thought  either 
that  there  was  negligence  in  the  stowage  of  the  anchor,  or  that  the  accident 

1  This  language  we  have  italicized  to  show  tion.  The  plaintiff  was  a  passenger  upon  a 
how  slight  was  the  regard  paid  to  the  strict  vessel  called  the  Sons  of  the  Thames.  The 
rule  of  Thorogood  v.  Bryan.  Here  are  two  defendant's  vessel,  called  the  Sapphire, 
persons  driving  madly  through  a  frequented  rubbed  against  the  Sons  of  the  Thames,  and 
thoroughfare,  in  a  race  for  patronage.  Such  coming  in  contact  with  the  anchor  of  the 
conduct,  it  cannot  be  doubted,  constitutes,  latter,  which  projected  a  little  over  her  lar- 
not  merely  negligence,  but  that  in  a  most  board  bow,  knocked  it  down  upon  the  plain- 
reprehensible  degree.  Therefore,  had  the  tiff's  leg,  and  so  crushed  it  as  to  render 
trial  judge  intended  to  follow  the  rule  of  amputation  necessary.  There  was  contra- 
Thorogood  v.  Bryan,  the  plaintiff  would  dictory  evidence  as  to  whether  or  not  the 
have  been  nonsuited  from  this  circum-  anchor  on  board  the  Sons  of  the  Thames 
stance,  and  the  defendant's  liability  would  was  properly  stowed,  the  defendants  con- 
not  have  been  made  to  depend  upon  the  tending  that  it  ought  to  have  been  lashed, 
mere  contingency  whether  the  omnibus  in  which  case  the  accident  could  not  have 
upon  which  the  plaintiff  rode  was  in  fault  happened.  A  verdict  having  been  rendered 
in  not  endeavoring  to  avoid  the  accident.  for  the  plaintiff  in  this  case,  a  motion  was 

2  5  Exch.  243.  made  for  a  new  trial,  and  cause  was  shown; 

3  The  striking  similarity  between  the  facts  but  the  judgment  of  the  court  upon  the  case 
of  this  case  and  those  of  Cattlin  v.  Hills  (a  was  never  delivered,  as  the  parties  agreed  to 
case  heard  at  the  same  time  with  Thorogood  a  compromise  immediately  upon  the  deci- 
V.  Bryan,  because  it  involved  very  much  the  sion  of  the  case  of  Thorogood  v.  Bryan.  See 
eame  question)  ought  not  to  escape  atteu-  a  C.  B.  133. 


PASSENGER  NOT  CHARGEABLE  WITH  CARRIER'S  NEGEIGE^CE.       287 
Thorogood  v.  Bryan  reasserted. 

arose  from  the  plaintiff  being  in  a  part  of  tlie  vessel  wliere  he  ought  not  to  have 
been,  they  ought  to  find  for  the  defendant.'  This  language,  it  is  unnecessary  to 
remark,  shows  a  thorough  abandonment  of  the  principle  of  Thorogood  v.  Bryan. 

§  4.  The  Principle  of  Thorogood  v.  Bryan  subsequently  reasserted.  —  Not- 
withstanding the  disparagement  with  which  Thorogood  v.  Bryan  has  been 
often  treated,  the  effect  of  at  least  two  comparatively  recent  decisions  must  be 
such  as  to  bolster  up  its  tottering  authority,  and  render  it  at  the  present  time  an 
accurate  expression  of  the  law  of  England  upon  this  subject.  In  a  case  decided 
as  late  as  the  year  1875, ^  the  facts  were  these :  The  plaintiff,  an  employee  of  a 
railroad  company,  was  travelling  in  one  of  its  trains  over  the  defendants'  road. 
The  train  ran  past  an  adverse  danger-signal,  and  into  some  trucks  that  were  being 
switched  on  the  line  by  the  defendants'  servants.  The  plaintiff  was  hurt  in  the 
collision.  On  the  trial,  the  jui*y  found  that  there  was  negligence,  both  on  the 
part  of  the  servants  in  switching  the  trucks,  and  of  the  engineer  of  the  train  in 
which  the  plaintiff  was  riding  in  running  past  the  danger-signal.  The  court 
held  that  it  was  impossible  to  distinguish  this  case  from  Thorogood  v.  Bryan ; 
and  said  Bramwell,  B.,  "  I  am  prepared  to  decide  this  case  upon  the  authority 
of  Thorogood  v.  Bryan,  which  has  never  been  overruled."  He  thought,  however, 
that  there  was  another  principle  upon  which  the  case  ought  to  be  decided  ad- 
versely to  the  plaintiff.  The  plaintiff,  although  not  engaged  in  the  management 
of  the  train  upon  which  he  was  riding,  was  nevertheless  a  servant  of  the  com- 
pany owning  the  train,  the  negligence  of  whose  servants  had  contributed  to  the 
occurrence  of  the  accident,  and  therefore  could  not  maintain  any  action  against 
the  company  in  whose  employ  he  was.  For  this  reason  the  learned  baron  seems 
to  have  considered  the  plaintiff  to  have  been  peculiarly  ^^ identified'^  with  those 
engaged  in  the  operation  of  the  train. 

Such  a  consideration  as  this  appears,  indeed,  to  have  been  the  basis  of  a  deci- 
sion by  this  same  court,  less  than  a  year  previous,^  in  a  case  where  it  appeared 
that  the  defendant  was  guilty  of  negligence  in  failing  to  restrain  his  pigs  from 
roaming  at  large,  in  consequence  of  which  neglect,  concurring  with  the  failui'e 
of  a  railroad  company  to  comply  with  the  statutory  regulation  requiring  it  to 
keep  its  track  securely  fenced,  the  animals  got  upon  the  line  of  the  railroad.  At 
the  moment  they  appeared  upon  the  track,  the  plaintiff,  a  track-repairer  in  the 
service  of  the  railway  company,  was  passing  upon  a  hand-car,  in  company  with 
fellow-workmen  returning  from  work  upon  the  line.  The  car,  running  over  tAVO 
of  the  pigs,  was  upset,  and  the  plaintiff's  leg  was  broken.  In  an  action  by  the 
plaintiff  against  the  owner  of  the  animals,  after  a  verdict  for  the  plaintiff,  a  rule 
to  enter  a  nonsuit  was  made  absolute  in  the  Court  of  Exchequer.  The  ground 
of  the  decision  is  apparent  from  the  language  of  Bramwell,  B.  :  *  "  What  might 
happen  if  one  of  the  public  were  injured  in  the  use  of  the  railway,  which  is  a 
public  highway,  I  will  not  say.  The  defendant  might  perhaps  say,  '  I  was  not 
bound  to  fence ; '  but  then  the  plaintiff  might  reply,  '  There  was  an  opening 
through  which  you  knew  the  pigs  might  get  out  of  your  field  upon  the  line ;  you 


1  6  Exch.  247.  '  Child  v.  Ilearn,  L.  R.  9  Exch.  176. 

2  Armstrong  v.  Lancashire  etc.  R.  Co.,  L.  <  L.  R.  9  Exch.  182. 
R.  10  Exch.  47;  «  c.  44  L.  J.  (Exch.)  89. 


288  IMPUTED    NEGLIGENCE. 


Notes. 


allowed  them  to  be  in  the  field,  and  I,  using  the  road  innocently,  suffered  injury 
through  their  escaping  on  to  the  line.'  But  however  that  might  be,  here  the 
plaintiff  was  a  servant  of  the  owner  of  property  which  was  unfenced  through 
the  owner's  default.  *  *  *  The  servant  can  be  in  no  better  position  than 
the  master,  when  he  is  using  the  master's  property  for  the  master's  purposes. 
Therefore,  without  saying  any  thing  as  to  the  decision  in  Thorogood  v.  Bryan,  it 
is  sufficient  to  say  that  the  defendant's  pigs  escaped  through  the  negligence  of 
the  plaintiff's  employer,  and  that,  having  met  with  the  accident  through  his 
employer's  negligence,  the  plaintiff  can  maintain  no  action  against  the  defend- 
ant." Pollock,  B.,  concurred  in  this  reasoning;  but  Pigott,  B.,  was  of  opinion 
that  no  negligence  had  been  shown  on  the  part  of  the  defendant,  and  for  this 
reason  the  plaintiff  ought  not  to  recover. 

The  foregoing  remarks  indicate  that  this  case  was  decided  upon  a  considera- 
tion both  novel  and  arbitrary.  Can  it  be  said  that  the  servant  is  identified  with 
his  master  or  fellow-servants  for  the  purposes  of  a  case  of  this  kind  ?  It  would 
seem  not.  It  is,  indeed,  a  familiar  legal  fiction  that  the  law  implies  a  contract 
on  the  part  of  a  servant,  when  he  enters  into  service,  that  he  will  assume  the 
ordinary  risks  which  are  incident  to  such  employment,  among  which  is  the  risk 
of  suffering  injury  from  the  negligence  of  his  fellow-servants  or  collahorateurs .^ 
As  a  corporate  body  like  a  railroad  corporation  can  act  only  through  its  agents 
or  servants,  the  act  of  each  servant,  within  the  scope  of  his  employment,  may  be 
said,  with  reference  to  his  fellow-servants,  to  be,  in  contemplation  of  law,  the 
act  of  such  fellow-servants.  To  this  extent  the  servants  of  a  common  employer 
may  be  said  to  be  identified  with  each  other.  But  this  fiction  of  the  law  should 
be  applied  only  to  the  exigencies  which  called  it  into  existence.  It  is  a  rule  of 
necessity  and  policy,  adopted  solely  for  the  protection  of  the  master  from  liability 
for  injuries  which  flow  from  causes  equally  obvious  to  master  and  servant,  and 
for  which  the  master  and  the  injured  servant  are  equally  blameless.  Now,  taking 
the  case  of  an  injury  to  a  servant  of  a  railway  company,  happening  by  reason  of 
the  concurrent  negligence  of  such  railway  company,  or  its  servants,  and  the  tor- 
tious act  or  omission  of  a  stranger,  how  can  that  stranger  be  heard  to  urge  in 
his  defence  a  rule  of  public  policy  which  exists  only  for  other  and  limited  pur- 
poses? If  it  is  by  force  of  an  implied  contract  that  a  servant  is  identified  with 
his  fellow-servants,  persons  not  privy  to  such  contract  can  claim  no  rights  under 
it.  Indeed,  it  would  seem  to  be  more  consonant  with  justice  to  hold,  that,  be- 
cause by  a  rule  of  public  policy  the  servant  is  deprived  of  his  action  against  his 
employer  in  such  cases,  there  should  remain  to  him  his  action  against  the  con- 
current wrong-doer. 

§  5.  American  Authority  upon  this  Subject.  —  The  deference  which,  in  gen- 
eral, is  justly  paid  to  the  adjudications  of  courts  of  England,  has  frequently 
resulted  in  the  propagation,  in  this  country,  of  the  principles  of  some  unfortunate 
decisions.  Thorogood  v.  Bryan  is  an  example  of  this.  In  Pennsylvania,  the  prin- 
ciple of  this  case  seems  to  have  been  adopted  in  all  its  length  and  breadth.'*  The 
learned  judge  who  delivered  the  opinion  in  the  case,  being  satisfied  that  the  pas- 
senger is  to  be  regarded  as  identified  with  his  carrier,  but  dissatisfied  with  the 

»  2  Thomp.  on  Neg.,  p.  969.  «  Lockhart  v.  Lichtenthaler,  46  Pa.  St.  151. 


PASSENGER  NOT  CHARGEABLE  WITH  CARRIER'S  NEGLIGENCE.      289 


American  Authorities. 

reasoning  of  the  Judges  in  that  case,  proceeded  to  say:  " I  would  say  the  reason 
for  it  is,  that  it  better  accords  with  the  policy  of  the  law  to  hold  the  carrier  alone 
responsible  in  such  circumstances,  as  an  incentive  to  care  and  diligence.  As  the 
la-K  fixes  responsibility  upon  a  different  principle  in  the  case  of  the  carrier,  as 
already  noticed,  from  that  of  a  party  who  does  not  stand  in  that  relation  to  the 
party  injured,  the  very  philosophy  of  the  requirement  of  greater  care  is  that  he 
shall  be  answerable  for  omitting  any  duty  which  the  law  has  defined  as  his  rule 
and  guide,  and  will  not  permit  him  to  escape  by  imputing  negligence  of  a  less 
culpable  character  to  others,  but  sufiicient  to  render  them  liable  for  the  conse- 
quences of  his  own.  It  would  be  altogether  more  just  to  hold  liable  him  who 
has  engaged  to  observe  the  highest  degree  of  diligence  and  care,  and  has  been 
compensated  for  so  doing,  rather  than  him  upon  whom  no  such  obligation  rests, 
and  wiio,  not  being  compensated  for  the  observance  of  such  a  degree  of  care,  acts 
only  OM  the  duty  to  observe  ordinary  care,  and  may  not  be  aware  even  of  the 
presence  or  a  party  who  might  be  injured.  This  rule,  it  cannot  be  doubted,  will 
be  more  JIKely  to  increase  diligence  than  its  opposite,  which  would  enable  a  neg- 
ligent and  ratthless  party  to  escape  the  consequences  of  his  want  of  care  by 
swearing  It  on  to  another,  which  he  would  assuredly  do  if  the  temptation  and 
opportunity  offered.  As  this  view  accords  best  with  the  policy  of  the  law,  it  is 
proof  of  the  existence  of  the  rule  itself."  ^ 

It  is  not  perceived  that  the  reasons  for  such  a  principle  as  established  in  Thoro- 
good  V.  Bryan  are  less  unsatisfactorily  stated  in  the  foregoing  remarks  than  in 
the  original  case,  because,  —  (1.)  It  may  be  positively  denied  that  the  adoption  of 
the  rule  whicn  we  contend  against  is  "  an  incentive  to  care  and  diligence."  It  is 
inconceivable  that  a  railway  company  would  lessen  that  high  degree  of  care  put 
upon  it  by  the  law,  if,  for  example,  in  the  case  of  a  collision  of  trains  at  the 
intersection  of  tracks  of  different  corpoi'ations,  either  company  would  be  respon- 
sible to  injured  passengers  by  reason  of  the  concurrent  negligence  of  the  train- 
men of  each  company.  The  reasoning  of  the  learned  judge,  therefore,  seems  to 
be  purely  speculative  upon  this  point.  (2.)  There  can  be  no  hardship  in  holding 
all  persons,  under  all  circumstances,  to  the  exercise  of  care  with  reference  to 
others,  accordhig  to  such  circumstances;  nevertheless,  the  learned  judge  seems 
to  intimate  that,  in  the  case  of  an  accident  which  is  the  result  of  the  concurrent 
negligence  of  two  parties, — one  acting  with  reference  to  the  injured  person 
according  to  the  standard  of  ordinary  care,  and  the  other  under  an  obligation  to 
use  the  highest  degree  of  diligence,  —  although  each  has  failed  to  observe  the 
degree  of  care  required  of  him  by  law,  the  injured  person  is  relegated  for  his 
remedy  to  one  of  them  only. 

It  is  gratifying  to  see  the  fallacy  of  the  rule  we  are  discussing,  so  ably  exposed 
as  in  the  opinion  of  Beasley,  C.  J.,  in  Bennett  v.  J^ew  Jersey  Bailroad  and 
Transportation  Company: '  *<  It  is  obvious,  in  a  suit  against  the  proprietor  of  the 
car  in  which  he  was  a  passenger,  there  could  be  no  recovery  if  the  driver  or 
conductor  of  such  car  is  to  be  regarded  as  the  servant  of  the  passenger.  And 
so,  on  the  same  ground,  each  passenger  would  be  liable  to  every  person  injured 
by  the  carelessness  of  such  driver  or  conductor;  because,  if  the  negligence  of 
such  agent  is  to  be  attributed  to  the  passenger  for  one  purpose,  it  would  be 

»  Per  Thompson,  J.,  46  Pa.  St.  164.  •  Ante,  p.  281. 

19 


^yU  I3IPUTED    NEGLIGENCE. 


Notes. 


entirely  arbitrary  to  say  that  he  is  not  to  be  affected  by  it  for  other  pur- 
poses.'" 

The  language  of  Johnson,  J.,  of  the  Court  of  Appeals  of  New  York,  is 
equally  explicit  against  this  rule:  "It  is  entirely  plain  that  the  plaintiff  had 
no  control,  no  management,  even  no  advisory  power,  over  the  train  ou  which 
he  was  riding.  Even  as  to  selection,  he  had  only  the  choice  of  going  by  that 
railroad  or  none.  To  attribute  to  him,  therefore,  the  negligence  of  the  agents 
of  the  company,  and  thus  bar  him  of  a  right  of  recovery,  is  not  applying  any 
existing  exception  to  the  general  rule  of  law,  but  is  framing  a  new  exception 
which  does  not  in  fact  rest  upon  the  reason  of  the  original  exception,  and  is 
based  on  fiction,  and  inconsistent  with  justice."'  Decisions  have  been  subse- 
quently rendered  in  this  State  in  accordance  with  this  exposition  of  the  law.^ 

Such  is  the  rule  in  Kentucky.  A  recovery  of  damages  was  allowed  against  a 
turnpike  company  for  negligence  in  keeping  their  gate,  resulting  in  an  injury  to 
a  passenger  on  a  stage-coach,  although  the  driver  of  the  coach  was  also  negli- 
gent in  not  having  his  lamps  lighted.  Stites,  J.,  expressed  the  rule  concisely: 
"Where  an  injury  is  occasioned  by  the  negligence  of  two  persons,  the  fault  of 
one  is  no  excuse  for  that  of  the  other.  Both,  in  that  case,  are  liable  to  the  party 
injured."  *  This  rule  has  been  reafiirmed  in  a  later  case  in  the  same  court,  where 
the  injury  resulted  from  a  collision  between  a  street  car  and  a  railroad  train, 
caused  by  the  reckless  driving  of  the  former  and  the  negligent  management  of 
the  latter,  in  consequence  of  which  the  plaintiff 's  intestate,  a  passenger  upon 
the  street  car,  met  his  death.* 

§  6.  Negligence  ol  a  Stranger  concurring  with  Negligence  of  the  Carrier, 
to  Injury  ol  Passenger.  —  There  can  be  no  question  as  to  the  carrier's  respon- 
sibility to  a  passenger  for  an  accident  which  is  the  result  of  his  negligence  con- 
curring with  that  of  a  stranger.  To  illustrate :  A  stage-coach,  by  the  negligence 
of  the  driver,  is  precipitated  into  a  dry  canal ;  the  lock-keeper  thereafter  negli- 
gently opens  the  gates  of  the  canal,  and  drowns  a  passenger.  Under  Lord 
Campbell's  Act,^  the  Irish  Court  of  Queen's  Bench  held  that  the  death  of  a 
passenger  under  such  circumstances,  in  the  language  of  the  act,  was  ^^  caused  " 
by  the  negligence  of  the  carrier.'  In  this  case,  O'Biuen,  J.,  said:  "The  precipi- 
tation of  the  omnibus  into  the  lock  was  certainly  one  cause,  and   (as  it  may  be 

136N.  J.  L.  227.  ants,  and    a  stage-coach  upon  which   the 

-  Chapman  v.  New  Haven  E.  Co.,  19  N.  Y.  plaintiff  was  riding,  whereby  the  plaintiff 

?A1,  344.  was  injured.    The  justice  at  the  circuit  had 

3  Colegrove  V.  New  York  etc.  R.  Co.,20N.  charged  that  the  plaintiff  was  responsible 

Y.  492;  «.  c.  6  Duer,  382;  Webster  v.  Hudson  for  the  negligence  of  the  driver  of  the  stage 

etc.  R.  Co.,  38  N.  Y.  260.    In   the  case  ol  in  which  she  was  riding,  and  the  jury  had 

IlroTn  V.  New  York   etc.  R.  Co.,  32  N.  Y.  found  that  there  was  no  negligence  on  the 

597  (s.  c.  31  Barb.  385).  the  question  as  to  part  of  the   driver.     The  question  of   im- 

whether  the  passenger  is  to  be  regarded  as  puted  negligence,  therefore,  was  not  before 

identified  with  the  carrier  was  somewhat  the  court. 

discussed,  but    the    language  in  that  case  ^  Danville  etc.  Turnpike  Co.  v.  Stewart, 

must  be  regarded  as  entirely  obiter,  and  was  2  Mete.  (Ky.)  119, 122. 

60  regarded  in  a  later  case  in  this  court.  '■>  Louisville  etc    R.  Co.  v.  Case's  Admin - 

Webster  v.  Hudson  etc.  R.  Co.,  supra.     It  istrator,  9  Bush,  728,735.     «  9  &  10  Vict.,  c.  93. 

was  a  case  of  a  collision  at  a  highway- cross-  '  Byrne  v.  Wilson,  15  Irish  C.  L.  (N.  s.) 

ing,  between  a  railroad  train  of  the  defend-  332, 342. 


PASSKNGEK  NOT  CHAKGKABLE  WITH  CARKIER's  NEGLIGENCE.      291 


Concurring  Negligence  of  Stranger — Children. 

said)  the  primary  cause,  of  her  death,  inasmuch  as  she  would  not  have  been 
drowned  but  for  such  precipitation.  It  is  true  that  the  subsequent  letting  of 
the  water  into  the  lock  was  the  other  and  more  proximate  cause  of  her  death, 
and  that  she  would  not  have  lost  her  life  but  for  such  subsequent  act,  which 
was  not  the  necessary  consequence  of  the  previous  precipitation  by  the  negli- 
gence of  defendant's  servants.  But,  in  my  opinion,  defendant  is  not  relieved 
from  liability  for  his  primary  neglect  by  showing  that  but  for  such  subsequent 
act  the  death  would  not  have  ensued." 

In  another  case,  it  appeared  that  the  driver  of  a  street  car  negligently  permitted 
the  plaintiff,  a  child  five  years  old,  and  another  child  eleven  years  old,  to  ride 
upon  the  front  platform  of  a  street  car,  and  that  the  elder  child,  who  was  not 
in  charge  of  the  plaintiff,  but  her  companion  merely,  attempted  to  put  her  off 
while  the  car  was  in  motion,  and  the  plaintiff  was  injured.<^  The  court  held 
that  the  negligence  of  the  elder  child  was  no  defence  to  an  action  against  the 
street-car  company  for  the  negligence  of  the  driver  in  permitting  the  children 
to  ride  in  such  an  exposed  position.'  In  a  New  York  case  under  the  statute 
giving  a  right  of  action  for  injuries  resulting  in  death,  it  appeared  that  the 
deceased,  a  boy  nine  years  of  age,  was  compelled  by  the  conductor  of  a 
street  car  to  stand  upon  a  crowded  platform.  From  this  position  he  was  thrown 
off  the  car  by  the  hasty  and  careless  departure  of  another  passenger,  and 
received  injuries  which  caused  his  death.  The  court  held  that  the  servant  of 
the  defendants  having  put  the  deceased  in  a  dangerous  place,  they  were  not 
relieved  from  the  consequences  of  their  default  by  the  fact  that  the  negligence 
of  one  of  their  passengers  directly  contributed  to  the  injury.'^ 

Another  case  presenting  a  combination  of  the  negligence  of  several  parties 
further  illustrates  the  principle  under  discussion.  The  driver  of  a  load  of  hay 
recklessly  endeavored  to  drive  it  from  the  highway-crossing,  upon  and  along  the 
railway  track,  to  certain  private  premises.  This  track  was  used  by  two  other 
companies  in  the  operation  of  their  trains,  besides  the  company  owning  it.  Dur- 
ing the  progress  of  the  wagon,  the  wheels  became  wedged  in  between  the  rails 
and  the  planking,  and  were  held  fast.  The  defendants'  train,  upon  which  the 
plaintiff  was  a  passenger,  having  been  detained  by  this  circumstance,  a  flagman 
was  sent  up  the  track  to  stop  other  trains.  There  was  evidence  that  this  pre- 
caution was  not  adopted  as  soon  as  the  situation  of  things  became  evident.  The 
train  of  another  company  came  rapidly  around  a  curve  at  this  point,  and  ran  into 
the  defendants'  train,  thereby  causing  the  injury  to  the  plaintiff.  There  was 
evidence  also  that  the  conductor  and  engineer  of  this  colliding  train  were  negli- 
gent in  its  operation.  Under  these  circumstances,  the  defendants  were  held  liable 
to  the  plaintiff  for  the  injuries  suffered,  Colt,  J.,  saying:  " It  is  no  answer  to  an 
action  by  a  passenger  against  a  carrier,  that  the  negligence  or  trespass  of  a  third 
party  contributed  to  the  injury."* 

§  7.  Children  and  Persons  of  Unsound  Mind  as  Passengers.  —  There  would 
seem  to  be  no  doubt  that  when  a  child  is  so  young  that  by  reason  of  its  imma- 

i  Pittsburgh  etc.  R.  Co.  v.  Cakhvell,  74  Pa.  ■''  Eaton  «.  Boston  etc.  R.  Co.,  11  Allen,  500, 

bt.  421.    See  also  East  Saginaw  City  R.  Co.  505.    See  also  Spooner  v.  Brooklyn  City  R. 

V.  Bohn,  2"  Mich.  503.  Co.,  54  N.  Y.  230;  Ryland  v.  Peters,  1  Phila. 

2  Sheridan  v.  Brooklyn  etc.  R.R.,  36N.Y.  39.  264. 


292  IMPUTED    NEGLIGENCE. 


Notes. 


tiirity  and  incapacity  to  guard  itself  against  danger  it  is  to  be  denominated  non 
stnjuns,^  or  even  older  than  tMs,^  if  the  parent  or  some  duly  authorized  person 
has  it  in  charge,  the  negligence  of  such  custodian  in  caring  for  the  child  will  be 
a  complete  defence  to  an  action  by  the  child  for  an  injury  which  is  the  result  of 
such  negligence  concurring  with  the  negligence  of  the  cari-ier. 

The  leading  case  upon  this  subject  is  that  of  Waite  v.  North-Eastern  Railroad 
Company,'^  the  facts  of  which  case  were,  that  the  plaintiff,  a  child  five  years  old, 
was  in  charge  of  its  grandmother,  who  procured  tickets  for  both  at  the  defend- 
ants' station  with  the  intention  of  taking  the  train  at  that  place.  The  pair,  in 
crossing  the  track  for  the  purpose  of  reaching  a  platform  on  the  side  of  the 
station  opposite  the  ticket-office,  were  run  down  by  a  train,  under  circumstances 
(as  a  jury  found)  of  concurrent  negligence  on  the  part  of  the  grandmother  and 
the  servants  of  fhe  defendant.  The  grandmother  was  killed,  and  the  plaintiff 
suffered  personal  injuries  for  which  the  suit  was  brought.  In  the  Court  of 
Queen's  Bench,  Lord  Campbell,  C.  J.,  held  that  the  infant  was  so  identified 
with  the  grandmother  that  the  action  could  not  be  maintained.  This  view  was 
sustained  in  the  Court  of  Exchequer  Chamber.  Crowder,  J.,  there  said:* 
"The  case  is  the  same  as  if  the  child  had  been  in  the  mother's  arms.  There  is 
an  identification,  such  that  the  negligence  of  the  grandmother  deprives  the  child 
of  the  right  of  action.  Now,  the  finding  of  the  jury  would  clearly  have  pre- 
vented the  gi-andmother  from  recovering:  it  therefore  has  the  same  effect  in 
respect  of  an  action  by  the  child.  It  would  be  monstrous  and  absurd  if  there 
could  be  a  distinction."  Cockburn,  C.  J.,  said:  "I  put  the  case  on  this 
ground:  that  when  a  child  of  such  tender  and  imbecile  age  is  brought  to  a 
railway  station,  or  to  any  convej^ance,  for  the  purpose  of  being  conveyed,  and  is 
wholly  unable  to  take  care  of  itself,  the  contract  of  conveyance  is  on  the  implied 
condition  that  the  child  is  to  be  conveyed  subject  to  due  and  proper  care  on  the 
part  of  the  person  having  it  in  charge." 

More  favorable  to  the  plaintiff  is  the  rule  laid  down  by  the  Supreme  Court  of 
Illinois  in  a  case  of  this  kind,  viz. :  The  negligence  of  a  parent  or  guardian  hav- 
ing in  charge  a  child  of  tender  years  will  not  excuse  a  carrier  by  rail  from  using 
all  the  means  in  its  power  to  prevent  injury  to  the  child;  yet,  if  the  negligence 
of  the  former  is  the  proximate  cause  of  the  injury  to  the  child,  by  unnecessarily 
and  imprudently  exposing  it  to  danger,  the  carrier  cannot  be  held  responsible, 
unless  it  is  sho^vn  to  have  omitted  duties  the  discharge  of  which  would  have 
averted  the  injury.^ 

The  negligence  of  which  a  parent  has  been  guilty  in  caring  for  his  child  under 
these  circumstances,  would  seem  to  be  properly  imputable  to  such  parent  as 
personal  representative  of  the  child,  in  an  action  for  a  statutory  penalty  for  its 
death,  where  such  negligence  concurring  with  the  negligence  of  the  carrier  or 
his  servants  has  produced  this  result.  It  was  so  adjudged  in  a  recent  case  by 
the  Supreme  Court  of  Pennsylvania. «  In  this  case,  the  plaintiff's  evidence 
developed  the  fact  that  her  son,  for  whose  death  the  action  was  brought,  was 

1  As  to  when  a  child  is  non  sui  juris,  see  «  El.  Bl.  &  El.  719,  723. 
2  Thomp.  on  Neg.,  p.  1180.  •»  El.  Bl.  &  El.  735. 

2  HoUy  V.  Bo-ston   Gas  Co.,  8  Gray,  123;  6  Ohio  etc.  R.  Co.  v.  Stratton,  78111.  88. 
Stillson  V.  Hannibal  etc.  R.  Co.,  67  Mo.  671;  «  Smith  v.  Hestouville  etc.  R.  Co.,  10  Cent. 
«.  c.  7  Cent.  L.  J.  107.  L.  J.  272.    (Decided  February,  1880.) 


PASSENGER  NOT  CHARGEABLE  WITH  CARRIER'S  NEGLIGENCE.       293 


Concurring  Negligence  of  Stranger  —  Cliilclren. 

less  than  seven  years  of  age.  He,  with  other  boys,  was  in  the  habit  of  pro- 
curing water  from  a  spring,  and  getting  upon  the  platforms  of  street  cars 
belonging  to  the  defendants,  and  furnishing  the  drivers,  conductors,  and  pas- 
sengers with  water.  For  this  service  he  had  been  accustomed  to  receive 
various  small  gratuities.  He  had  never  been  warned  by  the  company's  ser- 
vants to  keep  off  the  cars.  The  plaintiff  knew  that  her  son  was  thus  in  the 
habit  of  going  to  the  cars  with  water.  The  cup  and  pitcher  vised  by  him  for 
this  purpose  were  taken  by  him  with  her  consent.  On  the  fatal  occasion,  the 
deceased  jumped  upon  the  front  platform  of  a  car  which  was  not  provided 
with  a  fender,  and  gave  a  drink  to  the  driver.  No  one  saw  the  accident  which 
ensued,  or  could  explain  the  cause  of  it;  but  two  or  three  minutes  later, 
the  car  having  continued  moving  in  the  meantime,  the  child  was  seen  on  the 
street,  between  the  front  and  hind  wheels,  lying  on  his  back,  having  been  run 
over  by  the  front  wheel.  The  child  survived  his  injuries  less  than  two  days. 
The  conduct  of  the  defendant's  servants  in  thus  permitting  and  encouraging 
the  deceased  to  ride  upon  the  cars  was  undoubtfedly  grossly  negligent,'  and  a 
recovery  must  have  been  allowed  had  the  child  been  maimed  instead  of  killed, 
and  he  the  plaintiff  in  the  case  instead  of  his  parent.''  In  this  case  it  will  be 
seen  that  the  personal  representative  of  the  deceased  and  the  mother  of  the 
child,  whose  negligence  concurred  in  causing  its  death,  were  one  and  the  same 
person.  The  counsel  for  the  plaintiff,  however,  ingeniously  argued  that  they 
were  to  be  regarded  as  separate  and  distinct  persons ;  that  the  object  of  the  act 
giving  a  right  of  action  for  death  from  a  wrongful  act  was  to  substitute  the  per- 
sonal representative  of  the  deceased  for  him.^  The  deceased  was  of  an  age  too 
young  to  be  denominated  sui  juris,  and  was  therefore  incapable  of  negligence ;  * 
and  it  was  argued  that,  as  the  only  contributory  negligence  involved  in  the  case 
was  that  of  the  deceased,  a  recovery  ought  to  be  allowed.  The  metaphysical 
distinction,  however,  thus  sought  to  be  drawn  was  not  established  to  the  satis- 
faction of  the  court.  In  the  language  of  a  note  to  this  case,  where  the  report  is 
fouud,^  "  it  would  seem  that  the  court  very  properly  refused  to  recognize  any 
distinction  between  Elizabeth  J.  Smith,  mother  of  the  child  killed,  whose  reck- 
less disregard  for  its  safety  was  instrumental  in  causing  its  death,  and  Elizabeth 
J.  Smith,  personal  representative  of  the  unfortunate  lad,  to  whom  the  fruits  of 
this  action  would  have  accrued  in  case  a  recovery  of  damages  had  been  per 
mitted."  ®  The  same  conclusion  was  reached  in  a  similar  case  in  New  York,  by  a 
nisi  prius  court,  but  upon  other  grounds.' 

In  Willetts  v.  Buffalo,  etc.  Bailroad  Company,^  which  is  a  leading  case  upon 
this  subject,  a  lunatic  was  travelling  upon  a  railroad  train,  in  company  with  his 


1  Wilton  V.  Middlesex  R.  Co.,  107  Mass.  «  Citing  Bellefontaine  etc.  R.  Co.  v.  Sny- 
108;  Pittsburgh  etc.  R.  Co.  «.  Caldwell,  74  Pa.  der,  34  Ohio  St.  670;  Pennsylvania  R.  Co.  v. 
St.  421;  Day  v.  Brooklyn  R.  Co.,  12  Hun,  43.').  Zebe,  33  Pa.  St.  318;  s.  c.  37  P.a.  St.  420;  Bir- 

2  Pennsylvania  R.  Co.  v.  Kelly,  31  Pa.  St.  minghain  v.  Dorer,  3  Brewst.  C9;  Isabel  v. 
372;  Ranch  v.  Lloyd,  31  Pa.  St.  358;  Smith  v.  Hannibal  etc.  R.  Co.,  60  Mo.  475;  Walters  v. 
O'Connor,  48  Pa.  St.  218;  Glassey  v.  Heston-  Chicago  etc.  R.  Co.,  41  Iowa,  71;  O'Flaherly 
ville  etc.  R.  Co.,  57  Pa.  St.  172;  Kay  v.  Penn-  v.  Union  R.  Co.,  45  Mo.  70;  Koons  v.  St.  Louis 
srlvania  R.  Co.,  65  Pa.  St.  2C9;  Phila.  etc.  R.  etc.  11.  Co.,  65  Mo.  592;  Daley  v.  Norwich  etc. 
Cv  V.  Long,  75  Pa.  St.  257.  R.  Co.,  26  Conn,  rm,  .5'J8;  IJ.altimore  etc.  R. 

3  See  2  Bright.  Purd.  Dig.  1093.  Co.  v.  The  State,  30  Md.  47. 

*  2  Thomp.  on  Neg.,  p.  1181.  '  Fleming  v.  Brooklyn  City  R.  Co.,  1  Abb. 

5  10  Cent.  L.  .J.  274.  N.  C.  433.  »  14  Barb.  585. 


294  IMPUTED    NEGLIGENCE. 


Notes. 


father,  who  had  paid  the  fare  of  both,  through,  and  retained  the  tickets.  The 
father  got  out  at  a  stopping-place  to  procure  refreshments,  leaving  his  son  in  the 
cars  witliout  giving  notice  to  any  one  of  his  condition;  and  while  absent,  the 
train  started.  On  regaining  the  cars,  the  father  did  not  And  his  son  where  he 
had  left  him,  the  latter  having  changed  his  seat.  The  conductor,  during  this 
absence,  applied  to  the  lunatic  for  his  ticket,  not  knowing  him  to  be  insane  or 
that  his  fare  had  been  paid.  The  lunatic,  being  unable  to  deliver  a  ticket  or 
make  explanations,  was  ejected  from  the  train.  His  conduct  during  this  time, 
though  strange,  was  not  such  as  to  inform  the  train-men  of  his  mental  condition. 
Subsequently,  while  wandering  along  the  track  in  the  night-time,  he  was  run 
over  and  killed  by  another  train,  under  circumstances  which  showed  no  negli- 
gence on  the  part  of  the  managers  of  this  train.  In  an  action  under  the  New 
York  statute  ^  authorizing  an  action  to  recover  damages  by  the  personal  repre- 
sentative for  the  death  of  a  person  by  the  wrongful  act,  neglect,  or  default  of 
another,  it  was  held  that  the  negligence  of  the  parent  must  be  attributed  to  the 
deceased;  that  this  negligence  was  such  that  the  deceased  could  not  have  main- 
tained an  action  if  he  had  been  injured  instead  of  killed;  therefore  no  action 
could  be  maintained  by  his  personal  representative. 

§  8.  Other  Cases  illustrative  of  the  Rxile. —  Aclass  of  cases  is  brought  together 
under  this  head,  not  because  they  belong  within  the  scope  of  this  book,  for  they 
do  not  arise  out  of  any  contract  of  carriage,  express  or  implied,  but  because  they 
illustrate  the  rule  under  discussion  in  other  relations.  Friends  are  riding  together 
in  a  private  conveyance,  or  paterfamilias  is  taking  his  family  out  for  a  drive :  in 
case  of  an  injury  resulting  from  the  concurrent  negligence  of  the  driver  of  the 
vehicle,  and  others  outside  of  the  vehicle,  what  shall  be  the  rule  as  to  its  occu- 
pants? Are  they  to  be  regarded  as  "  identified  "  with  the  driver  of  their  convey- 
ance? In  such  cases  there  would  seem  to  be  a  proper  reason  for  sa)'ing  that  tht; 
passenger,  having  trusted  the  parties  owning  or  driving  the  vehicle,  by  choosing 
that  particular  conveyance,  has  so  far  identilied  himself  with  such  persons  that  if 
any  injury  results  from  their  negligence  he  must  be  considered  a  party  to  it. 
"One  enters  a  public  conveyance,  in  some  sort,  of  moral  necessity.  One  gen- 
erally enters  a  private  conveyance  of  free  choice,  voluntarily  trusting  to  its 
sufficiency  and  safety."  ^  Authority,  however,  is  not  uniform  upon  this  point. 
The  language  of  one  of  the  judges  of  the  Court  of  Exchequer  Chamber  would 
seem'  to  indicate  that  it  is  proper  to  hold  that  there  is  an  identification  of  the 
driver  with  the  person  carried  under  such  circumstances, ^  and,  in  view  of  the 
rule  declared  in  Thorogood  v.  Bryan,  an  English  court  would  probably  so  decide 
such  a  case.  In  several  of  the  States  this  point  has  been  thus  adjudicated.* 
The  contrary,  however,  is  held  by  the  Court  of  Appeals  of  New  York.* 

1  Laws  N.  T.  1847,  p.  575.  6  Eobinson  v.  New  York  etc.  R.  Co.,  66  N. 

2  Per  Ryan,  C.  J.,  in  Prideaux  v.  Mineral  Y.  11;  Metcalf  v.  Baker,  2  Jones  &Sp.  10;  s.  c. 
Point,  43  Wis.  513,  528;  s.  c.  6  Cent.  L.  J.  11  Abb.  Pr.  (V.  S.)  431;  52  N.  Y.  649;  Knapp  v. 
430.  Dagg,  18  How.  Pr.  165.     Contra,  Beck  v.  East 

2  Williams,  J.,  in  Waite  v.  North-Eastern  River  Ferry  Co.,  6  Robt.  87,  per  Robertson, 

R.  Co.,  El.  Bl.  &  El.  734.  C.  J.,  on  the  authorily  of   Browu  r.  Xew 

*  Houfe  V.  Fulton,  29  Wis.  296;  Prideaux  York  etc.  R.  Co.,  32  N.  Y.  GOl,  a  case  which 

V.  Mineral  Point,  supra;  Payne  v.  Chicago  has  since  been  overruled  by  the  Court  of 

etc.  R.  Co.,  39  Iowa,  523 ;  Lake  Shore  etc.  R.  Appeals  upon  this  point.     See  Webster  v. 

Co.  V.  Miller,  25  Mich.  274.  Hudson  etc.  R.  Co.,  38  N.  Y.  260;  ante,  §  5. 


CHAPTER    YIII. 

POLICE    DUTIES    OF   THE   CARRIER. 


Leadikg  Case:     1.  Pittsburgh,  Fort  Wayne,  and  Chicago  Bailway  Company  v. 
Hinds.  —  Duty  of  the  conductor  of  a  railway  train  to 
protect  passengers  from  the  assaults  of  fellow-passen- 
gers. 
Notes:  §  1.  Carrier's  authority  and  duty  in  this  particular. 

2.  Intoxicated,  disorderly,  and  dangerous  passengers. 

3.  Use  of  profane  language,  and  other  impi-oprieties. 

4.  Failure  to  execute  proper  police  regulations  —  Consequen- 

tial injury  to  passenger. 


DUTY  OF  THE  CONDUCTOR  OF  A  RAn.WAY  TRAIN  TO  PROTECT  PAS- 
SENGERS FROM  THE  ASSAULTS  OF  FELLOW-PASSENGERS. 

Pittsburgh,  Fort  Wayne,  and  Chicago   Eailway   Company 

V.  Hinds.* 

Supreme  Court  of  Pennsylvania,  1866. 

Hon.  George  W.  Woodward,  Chief  Justice. 
"     James  Thompson, 
•'     William  Strong, 
"     John  M.  Read, 
"     Daniel  Agnew, 


Judges. 


1.  Reciprocal  Duties  of  Carrier  and  Passenger. —The  carrier  is  under  an  obligation 

to  protect  tlie  passenger  by  the  enforcement  of  proper  police  regulations.  The  pas- 
senger is  under  a  reciprocal  obligation  to  subordinate  himself  to  such  regulations. 

2.  Not  bound  to  provide  apainst  Injury  at  all  Events. —Railroad  companies  are, 

however,  under  no  obligation  to  furnish  their  trains  with  a  standing  police-force  sufli- 
cient  for  the  emergencies  of  occasions  of  extraordinary  danger  to  passengers,  which 
could  not  have  been  foreseen. 

3.  Powers  and  Duties  of  Conductor  of  Railroad  Train  on  Occasions  of  Danger.  — 

It  is  the  duty,  however,  of  the  conductor  upon  such  an  occasion  to  exhaust  every 
means  in  his  i)ower  to  furtiier  the  safety  of  passengers:  to  stop  the  train,  call  together 
all  the  servants  of  the  company,  and  such  passengers  as  are  willing  to  lend  a  helping 
hand,  and  make  a  determined  effort  to  quell  a  disturbance  which  threatens  the  safety 
of  passengers  in  general. 

*  Reported,  53  Pa.  St.  612. 

(295) 


296  POLICE    DUTIES    OF    THE    CARRIER. 

Pittsburgh,  Fort  Waj^ne,  and  Chicago  Railway  Company  v.  HincLs. 

Ekror  to  the  Court  of  Common  Pleas  of  Allegheny  County. 

This  action  was  brought  December  5,  1865,  by  Parker  Hinds  ancf 
Martha  Jane,  his  wife,  against  the  Pittsburgh,  Fort  Wayne,  and  Chi- 
cago Railway  Company,  for  injury  to  her  whilst  riding  on  the  defend- 
ants' train. 

The  declaration  contained  two  counts,  both  averring,  in  forms  slightly 
variant,  negligence  on  the  part  of  the  defendants  and  their  officers  in 
charge  of  the  train,  resulting  in  the  dislocation  of  the  plaintiff's  arm;, 
but  not  setting  out  the  manner  in  which  it  was  done. 

The  injury  occurred  under  the  following  circumstances:  An  agricul- 
tural fair  was  in  progress  near  the  town  of  Beaver,  about  the  middle  of 
October,  1865.  On  one  of  the  days  of  the  fair,  Mrs.  Hinds  was  a  pas- 
senger on  the  defendants'  train,  in  the  ladies'  car,  which  was  the  hind- 
most in  the  train.  As  the  train  approached  the  Beaver  station,  a  large 
crowd  of  boisterous,  drunken  men  and  women  were  seen  approaching 
the  station,  and  as  soon  as  the  train  stopped,  noisy  and  disorderly 
drunken  men  forced  themselves  into  the  ladies'  car.  The  evidence  made 
it  pretty  clear  that  it  was  impracticable  for  the  conductor  to  keep  them 
off  the  train.  One  of  the  intruders,  who  was  amongst  the  most  boister- 
ous, and  was  uttering  loud  threats  against  some  one,  jumped  on  the 
rear  platform  as  the  car  started.  Soon  after  the  car  moved  off,  a  fight 
was  commenced  in  this  car  by  the  last  intruder.  In  the  course  of  the 
fight,  some  one  was  tlirown  upon  Mrs.  Hinds  with  such  violence  that 
her  arm  was  greatly  injured  and  she  laid  by  from  her  ordinary  duties. 
The  evidence  was  conflicting  as  to  the  efforts  made  by  the  conductor  to 
quell  the  fight,  —  some  of  the  witnesses  testifying  that  he  could  have 
got  amongst  the  combatants ;  others,  that  the  crowd  was  so  dense  that 
he  could  not  enter  the  car  at  all,  and  could  do  no  more  than  stand  at 
the  door  and  call  out  for  peace,  and  tell  the  passengers  to  throw  the 
rioters  from  the  car.  The  car  was  stopped  two  or  three  times  between 
Beaver  and  the  next  station;  but  at  each  time  went  on  after  two  or 
three  minutes  or  less,  without  any  thing  special  being  done  to  stop  the 
fight  or  eject  the  rioters.  All,  or  most  of  them,  got  out  at  the  next 
station. 

On  the  trial,  the  plaintiff  offered  evidence  to  show  "when,  where,  and 
how  the  plaintiff  was  injured."  The  defendant  objected  "to  evidence 
being  received  under  the  pleadings,  except  such  as  tends  to  establish 
an  injury  to  the  plaintiff  resulting  from  some  accident  to  the  uain." 

The  objection  was  overruled,  and  an  exception  taken.  Tl.cre  were 
also  points  submitted  by  the  plaintiff  which  the  opinion  of  the  Supreme 
Court  makes  it  unnecessary  to  specify. 


ASSAULTS    OF    OTHER    PASSENGERS.  297 

Supreme  Court  of  Pennsylvania. 

The  court  (Stowe,  A.  J.)  said  to  the  jury  that  the  plaintiff  claimed 
to  recover,  — 

"  1.  Because  the  evidence  shows  that  the  conductor  did  not  do  his 
duty  at  Beaver  Station,  by  allowing  improper  persons  to  get  upon  the 
cars. 

"2.  Because  he  allowed  more  persons  than  was  proper  under  the  cir- 
cumstances to  get  on  the  train  and  to  remain  upon  it. 

"3.  That  he  did  not  do  what  he  could  and  ought  to  have  done  to  put 
a  stop  to  the  fighting  upon  the  train,  which  resulted  in  the  plaintiff's 
injury." 

After  discussing  the  law  as  to  the  first  two  propositions,  and  sub- 
mitting them  as  questions  of  fact,  he  said  as  to  the  third :  — 

"The  evidence  shows  that  there  was  a  fight  going  on  in  the  cars; 
that  the  conductor  was  notified,  and  that  he  did  not  interfere  to  prevent 
it.  We  instruct  you,  as  a  principle  of  law,  that  the  conductor  of  a  train 
is  bound  to  attempt  to  put  a  stop  to  a  fight  in  the  cars,  if  he  can  do  so 
without  apparently  involving  great  personal  danger  to  himself ;  and  if 
no  attempt  is  made,  and  no  sufl3cient  excuse  be  shown  for  not  making 
an  effort  to  do  so,  and,  in  the  melee,  passengers  not  participating,  but 
quietly  occupying  their  seats,  are  injured,  the  railway  company  employ- 
ing such  conductor  is  liable  in  damages. 

"In  such  case,  the  law  casts  the  burden  of  proof  upon  the  defendant 
to  prove  that  an  effort  commensurate  with  the  contingency  was  made, 
or  to  show  such  facts  as  will  induce  a  jury  to  believe  that  it  would  have 
been  fruitless,  or  accompanied  with  actual  or  apparent  great  personal 
danger. 

"Has,  then,  the  conductor  shown  you  such  facts  as  in  your  opinion 
excuse  him  from  entering  the  car  and  using  his  authority  to  stop  the 
fight,  under  the  circumstances  as  estabhshed  by  the  testimony? 

"If  he  could  not  get  into  the  car  by  reason  of  the  crowd,  he  has.  If 
the  facts  satisfy  you  that  he  could  have  got  in  by  any  reasonable  possi- 
bility, it  was  his  duty  to  go,  and  to  use  every  proper  means  to  stop  the 
affray;  and  to  say  that  he  might  have  failed  to  stop  it,  will  not  do  in 
such  cases,  because  he  was  bound  to  make  the  attempt.  The  law  does 
not  hold  him  to  perform  impossibilities,  but  it  does  hold  him  to  a  strict 
performance  of  his  duty,  or  to  show  a  reasonable  excuse  for  its  non- 
performance. 

*'If  all  is  done  that  reasonable  men  would  say  was  proper  and  right 
under  the  circumstances,  that  is  all  that  is  required,  but  less  will  not 
sufllce." 

There  was  a  verdict  for  the  plaintiff  for  $2,250. 


298  POLICE    DUTIES    OF    THE    CARRIER. 

Pittsburgh,  Fort  Wayne,  and  Chicago  Railway  Company  v.  Hinds. 

The  errors  assigned  were,  the  admission  of  the  evidence,  and  the 
charge  of  the  court  in  submitting  the  case  to  the  jury,  as  stated  in  the 
three  propositions. 

J.  H.  Hampton,  for  plaintiff  in  error ;  T.  M.  Marshall,  for  defend- 
ant in  error. 

The  opinion  of  the  court  was  delivered  by  — 

Woodward,  C.  J. — The  action  is  for  an  injury  sustained  by  the 
plaintiff 's  wife  whilst  she  was  a  passenger  in  the  cars  of  the  defendants ; 
and  what  is  peculiar  in  the  case  is  the  fact  that  the  injury  was  not  occa- 
sioned by  defective  machinery  or  cars  or  road,  or  by  any  thing  that 
pertained  properly  to  their  business  as  transporters,  but  was  caused  by 
the  fighting  of  passengers  among  themselves.  Drunken  and  quarrel- 
some men  intruded  into  the  ladies'  car  in  great  numbers  whilst  the  train 
stopped  at  Beaver  Station,  and  in  the  disgraceful  fight  which  ensued 
among  them  the  plaintiff 's  arm  was  broken,  and  for  this  the  railroad 
company  is  sued.  Had  the  suit  been  against  the  riotous  men  who  did 
the  mischief,  the  right  of  recovery  would  have  been  undoubted ;  for  it 
is  not  more  the  duty  of  railroad  companies  to  transport  their  passengers 
safely  than  it  is  the  duty  of  passengers  to  behave  in  a  quiet  and  orderly 
manner.  This  is  a  duty  which  passengers  owe  both  to  the  company 
and  to  fellow-passengers,  and  when  one  is  injured  by  neglect  of  this 
duty,  the  wrong-doer  should  respond  in  damages.  But  in  such  a  case  is 
the  company  liable? 

There  is  no  such  privity  between  the  company  and  the  disorderly 
passenger  as  to  make  them  liable  on  the  principle  of  respondeat  superior. 
The  onl}'  ground  on  which  they  can  be  charged  is  a  violation  of  the 
contract  they  made  with  the  injured  party.  They  undertook  to  carry 
the  plaintiff  safely,  and  so  negligently  performed  this  contract  that  she 
was  injured.  This  is  the  ground  of  her  action;  it  can  rest  upon  no 
other.  The  negligence  of  the  company,  or  of  their  oflScers  in  charge  of 
the  train,  is  the  gist  of  the  action,  and  so  it  is  laid  in  the  declaration. 
And  this  question  of  negligence  was  submitted  to  the  jury  in  a  manner 
of  which  the  company  have  no  reason  to  complain.  The  only  question 
for  us  as  a  court  of  error,  therefore,  is  whether  the  case  was,  upon  thu 
whole,  one  that  ought  to  have  been  submitted.  The  manner  of  the  sub- 
mission having  been  unexceptionable,  was  there  error  in  the  fact  of 
submission? 

The  learned  judge  reduced  the  case  to  three  propositions.  He  said 
the  plaintiff  claims  to  recover,  — 

"1.  Because  the  evidence  shows  that  the  conductor  did  not  do  his 
duty  at  Beaver  Station,  by  allowing  improper  persons  to  get  on  the  cars. 


ASSAULTS    OF    OTHER    PASSENGERS.  299 

Supreme  Court  of  Pennsylvania. 

"2.  Because  he  allowed  more  persons  than  was  proper,  under  the 
circumstances,  to  get  on  the  train  and  to  remain  upon  it. 

"  3.  That  he  did  not  do  what  he  could  and  ought  to  have  done  to  put 
a  stop  to  the  fighting  upon  the  train,  which  resulted  in  the  plaintiff's 
injury." 

As  to  the  first  of  the  above  propositions  the  judge  referred  the  evi- 
dence to  the  jury,  especially  with  a  view  to  the  question  whether  the 
disorderly  character  of  the  men  at  Beaver  Station  had  fallen  under  the 
conductor's  observation  so  as  to  induce  a  reasonable  man  to  apprehend 
danger  to  the  safety  of  the  passengers. 

The  evidence  on  this  point  was  conflicting,  but  it  must  be  assumed 
that  the  verdict  has  estabhshed  the  conclusion  that  the  conductor  knew 
that  drunken  men  were  getting  into  the  cars.  Let  it  be  granted  also,  as 
a  conclusion  of  law,  that  a  conductor  is  culpably  negligent  who  admits 
drunken  and  quarrelsome  men  into  a  passenger-car.     What  then? 

The  case  shows  that  an  agricultural  fair  was  in  progress  in  the 
vicinity  of  Beaver  Station ;  that  an  excited  crowd  assembled  at  the 
station,  rushed  upon  the  cars  in  such  numbers  as  to  def}'  the  resisting 
power,  at  the  disposal  of  the  conductor,  and  that  the  man  who  com- 
menced the  fight  sprang  upon  the  platform  of  the  hindmost  car  after 
the}'  were  in  motion. 

Of  what  consequence,  then,  was  the  fact  that  the  conductor  knew 
these  were  improper  passengers?  It  is  not  the  case  of  a  voluntary 
reception  of  such  passengers.  If  it  were,  there  would  be  great  force 
in  the  point;  for  more  improper  conduct  could  scarcely  be  imagined 
in  the  conductor  of  a  train  than  voluntarily  to  receive  and  introduce 
among  quiet  passengers,  and  particularly  ladies,  a  mob  of  drunken  row- 
dies. But  the  case  is  that  of  a  mob  rushing  with  such  violence  and  in 
such  numbers  upon  the  cars  as  to  overwhelm  the  conductor  as  well  as 
the  passengers. 

It  is  not  the  duty  of  railroad  companies  to  furnish  their  trains  with  a 
police  force  adequate  to  such  emergencies.  They  are  bound  to  furnish 
men  enough  for  the  ordinary  demands  of  transportation,  but  they  are 
not  bound  to  anticipate  or  provide  for  such  an  unusual  occurrence  as 
that  under  consideration. 

Wlien  passengers  purchase  their  tickets  and  take  their  seats,  they 
know  that  the  train  is  furnished  with  the  proper  hands  for  the  conduct 
of  the  train,  but  not  with  a  police  force  sufficient  to  quell  mobs  by  the 
wayside.  No  such  element  enters  into  the  implied  contract.  It  is  one 
of  the  incidental  risks  which  all  who  travel  must  take  upon  themselves, 


300  POLICE    DUTIES    OF    THE    CARRIER. 

Pittsburgh,  Fort  Wayne,  and  Chicago  Eailway  Company  v.  Hinds. 

and  it  is  not  reasonable  that  a  passenger  should  throw  it  upon  the  trans- 
porter. 

These  observations  are  equally  applicable  to  the  second  proposition. 
The  conductor  did  not  "allow"  improper  numbers,  no  more  than  im- 
proper characters,  to  get  upon  the  cars.  He  says  he  took  no  fare  from 
them,  and  in  no  manner  recognized  them  as  passengers.  To  allow 
undue  numbers  to  enter  a  car  is  a  great  wrong,  almost  as  great  as 
knowingly  to  introduce  persons  of  improper  character,  and  in  a  suit- 
able case  we  would  not  hesitate  to  chastise  the  praetice  severely.  But 
this  is  not  a  case  in  which  the  conductor  had  any  volition  whatever  in 
respect  either  of  numbers  or  characters.  He  was  simply  overmastered, 
and  the  only  ground  upon  which  the  plaintiff  could  charge  negligence 
upon  the  company  would  be  in  not  furnishing  the  conductor  with  a 
counter-force  sufficient  to  repel  the  intruders.  This  was  not  the  ground 
assumed  by  the  plaintiff,  and  it  would  scarcely  have  been  maintainable 
had  it  been  assumed. 

Taking  the  case  as  it  is  presented  in  the  evidence,  we  think  it  was  error 
for  the  court  to  submit  the  cause  to  the  jury  on  these  two  grounds. 
But  upon  the  third  ground  we  think  the  cause  was  properly  submitted. 

If  the  conductor  did  not  do  all  he  could  to  stop  the  figlitin^,  there  was 
negligence.  Whilst  a  conductor  is  not  provided  with  a  force  sufficient 
to  resist  such  a  raid  as  was  made  upon  the  train  in  this  instance,  he  has, 
nevertheless,  large  powers  at  his  disposal,  and,  if  properly  used,  they 
are  generally  sufficient  to  preserve  order  within  the  cars  and  to  expel 
disturbers  of  the  peace.  His  official  character  and  position  are  a  power. 
Then,  he  may  stop  the  train  and  call  to  his  assistance  the  engineer,  the 
fireman,  all  the  brakemen,  and  such  passengers  as  are  willing  to  lend  a 
helping  hand ;  and  it  must  be  a  very  formidable  mob  indeed,  more 
formidable  than  we  have  reason  to  believe  had  obtruded  into  these  cai's, 
that  can  resist  such  a  force.  Until  at  least  he  has  put  forth  the  forces  at 
his  disposal,  no  conductor  has  a  right  to  abandon  the  scene  of  conflict. 
To  keep  his  train  in  motion,  and  busy  himself  with  collecting  fares  in 
forward  cars  whilst  a  general  fight  was  raging  in  the  rearmost  car,  where 
the  lady  passengers  had  been  placed,  was  to  fall  far  short  of  his  duty. 
Nor  did  his  exhortation  to  the  passengers  to  throw  the  fighters  out, 
come  up  to  the  demands  of  the  hour.  He  should  have  led  the  way,  and 
no  doubt  passengers  and  hands  would  have  followed  his  lead.  He 
should  have  stopped  the  train  and  hewed  a  passage  through  the  intrusive 
mass,  until  he  had  expelled  the  rioters,  or  have  demonstrated  by  an 
earnest  experiment  that  the  undertaking  was  impossible. 


IN    GENERAL.  301 


Notes. 


Such  are  the  impressions  which  this  novel  case  has  made  upon  our 
minds.  We  think  there  was  error  in  submitting  the  case  upon  the  first 
two  propositions,  but  none  in  submitting  it  on  the  third,  and  if  the 
record  showed  that  the  jury  decided  it  upon  this  latter  ground,  the 
judgment  could  be  affirmed.  But,  inasmuch  as  the  error  we  find  upon 
the  record  may  have  infected  the  verdict,  the  judgment  must  be 
reversed,  and  a 

Venire  facias  de  novo  awarded. 


NOTES. 

§  1.  Carrier's  Authority  and  Duty  in  this  Particular.  —  For  the  reason  that 
the  carrier  owes  to  the  passenger  the  exercise  of  the  utmost  diligence  for  his 
comfort  and  safety  while  the  relation  of  carrier  and  passenger  subsists,  the 
former  has  the  authority  to  institute  and  execute  proper  police  regulations  for 
the  protection  of  the  latter.  The  subordination  of  the  passenger  to  reasonable 
regulations  of  this  character  is  a  reciprocal  duty.  The  violation  of  such  regula- 
tions by  a  passenger  justifies  his  summary  expulsion  from  the  carrier's  vehicle 
or  premises,'  or  forcible  separation  from  the  other  passengers.^  The  authority 
of  the  carrier  in  this  respect  is  correlative  with  his  duty.  In  a  case  before  the 
Supreme  Court  of  Mississippi,^  this  matter  is  well  considered  by  Chalmers,  J., 
who  concludes  as  follows:  "Powers  aud  duties  are  usually  reciprocal,  and  may 
be  said  to  be  uniformly  so  when  the  power  is  of  a  public,  official  character,  con- 
ferred for  the  benefit  of  others.  The  failure  or  refusal  of  the  official  to  exercise 
such  a  power  in  a  proper  case,  when  called  upon  by  those  for  whose  protection 
he  has  been  invested  with  it,  amounts  to  negligence,  or  to  wilful  misconduct,  as 
the  circumstances  of  the  case  may  indicate,  *  *  *  A  failure  to  discharge  this 
duty  stands,  to  some  extent,  upon  the  same  footing  as  the  omission  to  perform 
any  other  official  duty,  and,  upon  the  maxim  respondeat  superior,  renders  the  cor- 
poration liable." 

Of  course,  a  considerable  degree  of  caution  is  necessary  in  the  execution  of 
this  power.  The  carrier  will  be  responsible  for  the  act  of  his  servant  in  expel- 
ling a  passenger  from  his  vehicle  under  a  mistake  of  fact  or  of  judgment  as  to 
the  misconduct  of  the  latter.*  Upon  familiar  principles,  no  more  force  can  be 
used  than  is  adequate  for  the  purpose  of  expulsion.^    Thus,  in  Seymour  v.  Green- 

>  Vinton  V.  Middlesex  R.  Co.,  ante,  p.  6;  Iowa,  562;  Chicago  etc.  R.  Co.  v.  Williams, 

Chicago  etc.  R.   Co.  v.  Griffin,  68  111.  499;  55  111.185,188. 

Pittsburgh  etc.  K.  Co.  v.  Van  Houten,  48  Ind.  »  New  Orleans  #tc.   R.  Co.  v.  Burke,  53 

90;    Pittsburgh    etc.    R.  Co.  «.  Vallelej-;   32  Miss.  200;  ».  c.  4  Cent.  L.  J.  539. 

Ohio  St.,  345;  s.  c.  7  Reporter,  406;  6  Cent.  '*  Higgins  v.  Watervliet  Turnpike  Co.,  46 

L.  J.  277.  N.  Y.  23. 

«  Marquette   v.  Chicago    etc.  R.  Co.,  33  ^  The  State  r.  Ross,  26  N.  J.  L.  224;  Mur- 
phy V.  Union  R.  Co.,  118  Mass.  228. 


302  POLICE    DUTIES    OF    THE    CARRIER. 


Notes. 


loood,^  the  Court  of  Exchequer  Chamber  held  that  the  carrier  was  responsible 
for  an  injury  caused  by  the  needlessly  violent  expulsion  from  an  omnibus  of  a 
person  who  was  drunk,  had  refused  to  pay  his  fare,  and  had  assaulted  the  guard. 
The  time,  place,  and  circumstances,  also  the  condition  of  the  passenger,  will  be 
elements  for  the  jury  in  deciding  whether  the  expulsion  was  effected  in  a  reason- 
able manner,  so  as  not  to  inflict  wanton  or  unnecessary  injury  upon  the  offending 
passenger,  nor  needlessly  to  place  him  in  circumstances  of  peril  at  the  time  of 
and  after  his  expulsion.^ 

§  2.  Intoxicated,  disorderly,  and  dangerous  Passengers.  — If  the  conduct  of 
the  passenger  is  such  as  to  excite  reasonable  apprehensions  that  his  presence 
will  result  in  injury  or  annoyance  to  other  passengers,  it  is  the  right  and  duty  of 
the  conductor  to  expel  him,  without  waiting  for  any  overt  act  of  violence.^ 
Gamblers  and  monte-men,  whose  purpose  in  travelling  upon  a  train  is  to  ply 
their  vocations,  may  be  excluded  therefrom.  But  if  a  ticket  has  been  sold  to 
such  a  person,  and  the  company  desires  to  rescind  the  contract  for  transporta- 
tion, and  prevents  him  from  getting  on  board,  it  should  at  the  same  time  tender 
fie  return  of  the  money  paid  for  the  ticket.* 

In  the  case  just  noticed,  the  plaintiff  was  prevented  from  entering  the  tpain. 
Said  Dundy,  J. :  "  Necessary  force  may  be  used  to  prevent  gamblers  from  enter- 
ing trains,  and  if  found  on  them  engaged  in  gambling,  and  refusing  to  desist, 
they  may  be  forcibly  expelled."  It  is  not  perceived  why,  according  to  the  prin- 
ciple of  Vinton  v.  Middlesex  Bailroad  Company,^  gamblers,  pickpockets,  sneak- 
thieves,  and  persons  whose  notoriously  vicious  character  renders  it  extremely 
probable  that  their  presence  will  result  in  the  robbery  or  swindling  of  other 
passengers,  may  not  be  excluded  even  after  they  have  taken  passage  upon  the 
train,  and  before  they  have  begun  to  ply  their  vocation.  The  circumstance  that 
large  numbers  of  the  travelling  public  are  defenceless  persons,  and  that  their 
property,  while  on  the  journey,  is  quite  insecure,  would  seem  to  be  a  sufficient 
reason  for  vesting  the  carrier's  servants  with  the  power  and  duty  of  summarily 
expelling  such  notorious  law-breakers  at  any  time  from  a  raili-oad  train,  steam- 
boat, street  car,  or  other  public  conveyance.  "The  safeguard  against  an  unjust 
or  unauthorized  use  of  the  power  is  to  be  found  in  the  consideration  that  it  can 
never  be  properly  exercised  except  in  cases  where  it  can  be  satisfactorily  proved 
that  the  condition  or  conduct  of  a  person  was  such  as  to  render  it  reasonably 
certain  that  he  would  occasion  discomfort  or  annoyance  to  other  passengers  if 
he  was  admitted  into  a  public  vehicle,  or  allowed  longer  to  remain  within  it."^ 
If  the  probability  of  mere  discomfort  or  annoyance  is  a  sufficient  reason  for  the 
expulsion  of  an  obnoxious  passenger,  a  fortiori  that  of  robbery  ought  to  be. 

The  foregoing  observations  are  prompted  by  the  circumstance  that  sufficient 
consideration  does  not  seem  to  have  been  bestowed  by  Rolfe,  B.,  upon  the 

1  7  Hurl.  &  N.  355  (affirming  s.  c.  6  Hurl.  &  a  Vinton  v.  Middlesex  R.  Co.,  11  Allen,  301, 

N.  359).                               '  an<e,  p.  6. 

-  Pittsburgh  etc.  R.  Co.  v.  Valleley,  33  Ohio  *  Thurston  r.  Union  Pacific  R.  Co.,  4  Dill. 

St.  345;  s.  c.l  Reporter,  406;  Murphy  v.  Union  321,  ante,  p.  10. 

R.  Co.,  118  Mass.  228;   Marquette  v.  Chicago  '■>  Ante,  p.  6. 

etc.  R.  Co.,  33  Iowa,  562;  Haley  v.  Chicago  c  Bigelow,C.  J.,  in  Vinton  v.  Middlesex  R. 

etc.,  R.  Co.,  21  Iowa,  15.  Co.,  ante,  p.  9. 


DRUNKEN    AND    DISORDERLY   PASSENGERS.  303 


Failure  to  execute  Regulations. 

security  of  passengers,  in  a  nisi  prius  case,  where  he  ruled  that  though  certain 
passengers  were  known  to  be  pickpockets,  that  might  be  a  reason  for  watching 
them,  but  per  se  did  not  justify  putting  them  off.'  It  cannot  be  seriously  con- 
tended, for  example,  that  it  is  the  duty  of  the  conductor  of  a  railroad  train  to 
detail  a  squad  of  brakemen  from  the  control  of  the  train  to  watch  a  gang  of 
known  pickpockets,  or  of  the  railroad  company  to  supply  every  train  with  a 
private  police  force  for  this  purpose. ^  Such  is  not  the  duty  of  carriers  or  their 
agents.  Therefore,  if  the  language  of  Rolfe,  B.,  is  the  law,  passengers  are 
without  adequate  protection  against  persons  known  to  be  dangerous,  who  have 
boarded  a  public  conveyance  for  the  express  purpose  of  robbery  or  swindling.* 
The  master  of  a  ship  has  been  held  responsible  for  losses  incurred  by  a  pas- 
senger at  the  hands  of  a  pair  of  gamblers  and  tricksters,  which  it  was  in  his 
power  to  have  prevented,  because  he  was  aware  of  the  character  of  one  of  the 
swindlers.  The  cheating  was  done  in  the  presence  of  the  clerk  of  the  boat,  and 
the  master  was  informed  of  the  circumstance  in  season  to  have  compelled  the 
pair  to  disgorge.* 

§  3.  Use  of  Profane  Langtiage,  and  other  Improprieties.  —  The  use  of  pro- 
fane and  indecent  language  in  the  presence  of  ladies  is  such  a  breach  of  decorum 
as  will  afford  just  cause  for  the  removal  of  the  passenger  from  the  carrier's 
conveyance,  although  he  was  provoked  to  such  expressions  by  the  demand  of 
the  conductor  for  fare  which  had  already  been  paid.^  If  a  person,  having  pur- 
chased a  ticket,  attempts  to  get  aboard  a  car  when  disgustingly  drunk,  or  so 
drunk  as  to  be  likely  to  violate  the  common  proprieties  and  decencies  of  life, 
he  has  no  right  to  passage  while  in  that  condition ;  ^  but  slight  intoxication, 
such  as  would  not  be  likely  to  seriously  affect  the  conduct  of  the  person  intox- 
icated, would  not  be  sufficient  ground  to  refuse  him  passage,  although  his  be- 
havior might  not  be  in  all  respects  strictly  becoming.' 

§  4.  Failure  to  execute  proper  Police  Begtilations  —  Consequential  Injury 
to  Passenger.  —  As  before  stated,  the  duty  of  protection  which  the  carrier  owes 
to  the  passenger  includes  a  responsibility  for  the  unlawful  acts  of  fellow-pas- 
sengers, when  by  the  exercise  of  the  highest  degree  of  care  those  acts  might  have 
been  foreseen  and  prevented.^    As  stated  by  Shipman,  J.,  in  Flint  v.  Norwichy 

1  Coppin  V.  Braithwaite,  8  Jur.  875.    This  See  also  The  People  v.  Caryl,  3  Park.  Cr. 

case  was  cited  by  Davis,  J.,  in  the  opinion  Cas.  326. 

of  the  court  in  Pearson  v.  Duane,  4  Wall.  ^  Murphy  v.  Union  R.  Co.,  118  Mass.  228; 

605,    613,  ante,  p.  20;    but  the  facts  of  that  Vinton  v.  Middlesex  M.  Co.,  ante,  p.  6.    The 

case  in   no    respect  resemble  those  under  State  v.  Koss,  26  N.  J.  L.  224 ;  Pittsburgh  etc. 

discussion,  aa  the  passenger  was  not  a  dan-  R.  Co.  v.  Vandyne,  57  Ind.  576;  Hendricks 

gerous  person.  v.  Sixth  Avenue  R.  Co.,  12  Jones  &  Sp.  8. 

«  Pittsburgh  etc.  R.  Co.  v.  Hinds,  53  Pa.  '  Putnam  v.  Broadway  etc.  R.  Co.,  55  N.  Y. 

St.  512, 516,  8.  c.  on<e,  p.  296,  per  Woodward,  108,  114;  Pittsburgh  etc.  R.  Co.  i>.  Vandyne, 

C.  J.  supra. 

^  Weeks  v.  New  York  etc.  R.  Co.,  72  N.  Y.  »  I'ittsburgh  etc.  R.  Co.  v.  Hinds,  ante,  p. 

56;  s.  c.  17  Am.  L.  Reg.  (N.  8.)  506;  6  Re-  295;    Putnam    v.  Broadway  etc.  R.  Co.,  55 

porter,  54.  N.  Y.  108;  Flint  v.  Norwich  etc.  Transp.  Co., 

1  Smith  V.  Wilson  (U.  S.  Dist.  Ct.  South.  34  Conn.  554;  a.  c.  0  Blatchf.  158;   Pittsburgh 

Dist  Ala.,  Busteed,  J.),  31  How.  Pr.  272.  etc.  R.  Co.  v.  Pillow,  76  Pa.  St.  510;  New  Or- 

°  Chicago  etc.  R.  Co.  v.  Griffln,  68  111.  499.  leans  etc.  R.  Co.  v.  Burke,  53  Miss.  200;  a.  c. 


304  POLICE    DUTIES    OF    THE    C.VKKIEU. 


Notes. 


etc.  Transportation  Company,^  carriers  are  '*  bound  to  exercise  the  utmost 
vigilance  and  care  in  maintaining  order  and  guarding  the  passengers  against 
violence,  from  whatsoever  source  arising,  which  might  reasonably  be  antici- 
pated or  naturally  be  expected  to  occur,  in  view  of  all  the  circumstances,  and 
of  the  number  and  character  of  the  persons  on  board."  Therefore,  in  a  case  in 
which  the  plaintiff  was  injured  by  the  accidental  discharge  of  a  gun  which  fell 
from  the  hands  of  a  soldier,  engaged  in  a  scuffle,  who  was  one  of  a  large  body 
of  soldiers  who  had  embarked  upon  the  defendant's  boat,  —  many  of  them  drunk 
and  disorderly,  though  in  charge  of  their  officers  and  a  guard,  —  he  left  it  to  the 
jury  to  say  whether  the  officers  of  the  boat  were  properly  vigilant  in  attempting 
to  quell  the  disorder,  or  in  informing  the  passengers  of  the  character  of  the  men 
and  the  danger  of  coming  in  contact  with  them.^  Although  it  is  not  the  duty  of  a 
railroad  company  to  furnish  a  standing  police  force  adequate  to  the  resistance  of 
mobs  of  disorderly  persons  who  may  board  its  trains,  j'et  it  is  the  duty  of  the 
conductor  of  the  train  to  make  all  possible  resistance  against  such  disorderly 
persons,  by  calling  together  for  this  purpose  all  the  train-men  and  passengers 
willing  to  lend  a  helping  hand  to  this  end.*  Whether  the  carrier  has  pro%ided  a 
sufficient  number  of  officers  for  the  protection  of  its  passengers,  is  a  question  for 
the  jury.''  The  conductor  of  a  railroad  train  does  not  perform  his  duty  on  the 
occasion  of  a  violent  disturbance  among  a  large  body  of  drunken  passengers  by 
coming  to  the  car  door  and  counselling  the  sober  passengers  to  throw  the  rioters 
from  the  car,^  nor  by  simply  hurrying  an  assaulted  passenger  from  one  car  into 
another,  making  no  effort  to  remove  from  the  train  the  persons  guilty  of  the 
assault,  or  prevent  their  further  violence.^    . 

If  the  assault  upon  the  passenger  is  so  sudden  that  it  cannot  be  prevented, 
and  the  conduct  of  the  person  making  the  assault  has  previously  not  been  such 
that  his  action  might  reasonably  have  been  anticipated,  the  carrier  will  not  be 
responsible  for  the  consequences.'  Thus,  an  intoxicated  passenger,  having 
Insulted  two  women  who  were  in  the  company  of  the  plaintiff 's  intestate,  was 
ordered  by  the  conductor  of  the  street  car  in  which  they  were  riding  to  take  a 
seat  and  be  quiet,  which  he  did.  After  the  conductor  returned  to  the  rear  plat- 
form of  the  car,  the  passenger  resumed  his  abuse,  and  threatened  the  plaintiff 's 
intestate  with  violence.  None  of  this  last  conversation  was  in  a  tone  suffi- 
ciently loud  for  the  conductor  to  hear,  nor  was  there  any  evidence  that  it  came 
to  his  knowledge.  The  passenger  then  went  upon  the  front  platform,  and 
remained  there  quietly  until  the  plaintiff 's  intestate  left  the  car  and  was  assist- 
ing his  companions  to  alight,  when  the  passenger  in  question  came  around  from 
the  front  platform  and  assaulted  him  with  a  car-hook,  inflicting  blows  upon  his 
head  from  the  effects  of  which  he  died.  The  Court  of  Appeals  held  that  in  this 
case  a  motion  for  a  nonsuit  should  have  been  granted.     Said  Allen,  J.,  deliver- 

4  Cent.  L.  J.  539 ;  Holly  v.  Atlanta  Street  R.  3  Pittsburgh  etc.  R.  Co.  v.  Hinds,  ante, 

Co.  (Sup.  Ct.  Ga.),  7  Reporter,  460;  Sherley  p.  295. 

V.  Billings,  8  Bush,  147;  Goddard  v.  Grand  ^  Holly  v.  Atlanta  Street  R.  Co.  (Snp.  Ct. 

Trunk  R.  Co.,  57  Me.  202,  213,  per  Walton,  J. ;  Ga.).  7  Reporter,  460. 

Hendricks  v.  Sixth  Avenue  R.  Co.,  12  Jones  ^  Pittsburgh  etc.  R.  Co.  v.  Hinds,  supra. 

A  Sp.  8.  6  New  Orleans  etc.  R.  Co.  v.  Burke,  53 

1  Supra.  Miss.  200 ;  s.  c.  4  Cent.  L.  J.  539. 

2  Flint  V.  Norwich  etc.  Transp.  Co.,  34  '  Putnam  v.  Broadway  etc.  R.  Co.,  55  N. 
Conn.  554.  Y.  108. 


DRUNKEN    AND    DISORDERLY    PASSENGERS.  305 


Failure  to  execute  Regulations. 


ing  the  opinion  of  the  court:  "The  fact  that  an  individual  may  have  drank  to 
excess  will  not,  in  every  case,  justify  his  expulsion  from  a  public  conveyance. 
It  is  rather  the  degree  of  intoxication,  and  its  effect  upon  the  individual,  and 
the  fact  that  by  reason  of  the  intoxication  he  is  dangerous  or  annoying  to  the 
other  passengers,  that  gives  the  right  and  imposes  the  duty  of  expulsion.' 
*  *  *  If  there  vras  any  thing  in  the  condition,  conduct,  appearance,  or  man- 
ner of  Foster  [the  assailant]  from  vphich  the  jury  could  reasonably  infer  that 
there  was  reason  to  expect  or  anticipate  an  attack  upon  the  deceased,  or  any 
other  passenger,  either  while  upon  the  car  or  in  the  act  of  leaving,  the  facts 
authorizing  such  inference  should  have  been  proved,  and  the  knowledge  of  them 
brought  home  to  the  conductor."  * 

Although  the  circumstances  of  an  assault  upon  a  passenger  may  be  such  that  the 
company  will  be  liable  for  injuries  sustained  by  the  passenger,  yet  this  liability 
does  not  cover  every  species  of  damage.  Thus,  the  car  in  which  the  plaintiff 
was  a  passenger  was  left  standing  alone,  in  the  city  of  New  York,  without  any  o 
the  company's  servants  upon  it.  The  plaintiff,  while  leaving  the  car,  was 
violently  assaulted  and  robbed  of  a  large  quantity  of  bonds,  by  three  persons, 
whose  presence  upon  the  car  was  unknown  to  the  defendant's  servants,  though 
it  might  have  been  known  but  for  their  negligence.  In  an  action  for  the  value  of 
the  securities  thus  taken  from  the  passenger,  the  court  held  that  the  defendant 
owed  no  such  duty  to  the  plaintiff  as  that  of  an  insurer  of  the  safe  carriage  of 
his  securities  in  the  mode  of  carriage  adopted  by  him.'  But  where  the  police 
regulations  of  a  steamboat  are  so  lax  that  time  and  opportunity  is  given  a  thief, 
without  detection  to  enter  a  state-room  of  the  ladies'  cabin,  which  was  properh 
fastened,  and  steal  therefrom  a  portion  of  the  plaintiff 's  baggage,  the  proprie- 
tors of  the  boat  were  held  responsible  for  the  loss.* 

J  Id.  114.  56 ;  8.  c.  17  Am.  L.  Reg.  (N.  s.)  506 ;  6  Reporter, 

2  Id.  118.    See  also  New  Orleans  etc.  R.  Co.  64. 

V.  Burke,  .53  Miss.  200,  225.  ••  Walsh  v.  The  H.  M.  Wright,  Newb.  Adm. 

«  Weeks  v.  New  York  etc.  R.  Co.,  72  N.  Y.  494.    But  see  Abbott  v.  Bradstreet,  55  Me.  530. 

20 


CHAPTEK  IX. 

REGULATIONS  OF  THE  CARRIER. 


Leading  Cases:  1.  Day  v.  Owen.  —  Regulations  must  be  reasonable :  whether 
so,  a  mixed  question  of  law  and  fact  —  Exclusion  of 
colored  passenger  from  cabin  of  steamboat. 

2.  Bass  V.  Chicago  and  North- Western  Bailway  Company. — 

The  same  subject  —  Exclusion  of  male  passenger  from 
ladies'  car. 

3.  Chicago,  Burlington,  and  Qiiincy  Bailroad  Company  v.  Parks. 

—  Discrimination  between  price  of  ticket  and  fares  paid 
on  the  train. 

4.  Du7in  V.  Grand  Trunk  Bailway.  —  Passengers  upon  freight- 

trains  are  not  presumed  to  have  knowledge  of  a  regulation 
of  the  company  forbidding  the  reception  of  passengers 
upon  such  trains. 

Notes:     §  1.  Power  of  carriers  to  establish  regulations. 

2.  Regulations  as  to  exhibition  and  delivery  of  tickets. 
8.  Passengers  riding  without  ticket,  or  without  a  proper  ticket. 
4.  Refusal  to  pay  fare. 

6.  Discrimination  in  price  of  tickets  purchased  at  the  com- 
pany's office  and  fare  paid  on  the  train. 

6.  Transportation  of  passengers  upon  freight-trains. 

(1.)  In  general. 

(2.)  Who  are  to  be  regarded  as  passengers. 

7.  Classification  of  passengers. 

(1.)  According  to  sex. 
(2.)  According  to  color. 

8.  Exclusion    of     "runners"    from  carrier's   vehicles   and 

premises. 


1.  REGULATIONS  MUST   BE   REASONABLE  — EXCLUSION  OF  COLORED 

passenger  from  cabin  of  steamboat. 

Day  v.  Owen.* 

Supreme  Court  of  Michigan,  1858. 

Hon.  George  Maktin,  Chief  Justice. 
*'     Randolph  Manning,    ] 
"      Isaac  P.  Christiancy,  I  Judges. 
"     James  V.  CAMPBELL,t     I 

1.  Carrier  may  make  reasonable  Regulations.  — The  right  to  be  carried  by  a  common 
carrier  of  passengers  is  a  right  superior  to  the  rules  and  reguhitions  of  the  conveyance, 

{30G)  *  Repovted,  5  Mich.  520.  t  Not  sittiJijr. 


REGULATIONS    OF    THE    CARRIER.  307 

Supreme  Court  of  Michigan. 

and  cannot  be  affected  by  them;  but  the  accommodation  of  passengers  while  being 
transported  is  subject  to  such  rules  and  regulations  as  the  carrier  may  think  proper  to 
make,  provided  they  be  reasonable.  Such  rules  and  regulations  must  have  for  their 
object  the  accommodation  of  passengers  generally,  and  they  must  be  of  a  permanent 
nature,  and  not  made  for  a  particular  occasion  or  emergency. 

"2.  Pleading-  such  Keg-ulations.  —  It  is  sufficient,  in  pleading,  to  state  the  rule  or  regula- 
tion; that  the  plaintiff  comes  within  it;  and  to  aver  its  reasonableness.  The  facts 
upon  which  the  party  relies  to  establish  its  reasonableness  need  not  be  spread  upon 
the  record. 

3.  Reasonableness  of  Regulations  a  Mixed  Question  of  Law  and  Fact  —  Case  in 
Judgment  —  Exclusion  of  Colored  Passenger  from  Cabin  of  Steamboat.  — In 

an  action  against  a  common  carrier  of  passengers  for  refusing  the  plaintiff  (a  colored 
person)  cabin  passage,  the  defence  was,  that,  by  the  regulations  and  established  course 
of  business  of  the  boat,  persons  of  the  plaintiff's  race  were  not  allowed  the  use  of  the 
cabin  as  passengers,  which  regulation  and  course  of  business  were  averred  to  be 
reasonable;  to  which  the  iilaintiff  demurred.  Such  demurrer  was  not  well  taken,  the 
reasonableness  of  the  regulation  in  question  being  a  mixed  question  of  law  and  fact, 
to  be  found  by  the  jury  on  the  trial,  under  the  instructions  of  the  court,  and  not  to  be 
determined  on  demurrer. 

Error  to  Wayne  Circuit. 

Ttie  action  was  case  against  the  defendant  as  a  comrnori  carrier. 

The  first  count  in  the  declaration  alleged  that  the  defendant  was  the 
owner  of  the  steamer  Arrow,  plying  between  Detroit  and  Toledo,  and 
that  the  plaintiff  applied  on  lioard  of  said  steamboat  for  a  cabin  passage 
from  Detroit  to  Toledo,  and  offered  to  pay  for  the  same,  which  was 
averred  to  be  a  usual  mode  of  conveyance  of  passengers  upon  said 
boat ;  that,  although  there  was  room,  the  defendant  refused  to  give 
the  plaintiff  a  cabin  passage,  wiiereby  the  plaintiff  was  put  to  great 
expense,  trouble,  and  delay,  and  obliged  to  travel  in  the  night  a  hundred 
miles  out  of  his  way  to  reach  Toledo.  A  second  count  alleges  that  the 
defendant  was  a  common  carrier,  by  water,  of  passengers  in  and  by  the 
cabin  and  deck  of  said  steamboat,  for  the  conveyance  of  travellers  in 
and  by  said  cabin,  or  in  and  upon  said  deck,  according  as  such  travellers 
may  require,  for  reasonable  hire  and  reward,  which  was  greater  in  case 
conveyance  was  required  in  the  cabin  than  in  case  it  was  required  upon 
the  deck,  and  was  the  proprietor  of  said  cabin,  or  covered  room,  and 
of  said  open  deck,  as  well  as  of  all  parts  of  said  vessel ;  that  the 
l)laintiff  went  on  board  of  said  boat  and  demanded  to  be  carried  in 
said  covered  room  to  Toledo ;  but,  although  the  plaintiff  tendered  the 
greater  hire  and  reward,  and  although  the  vessel  was  ready  to  start,  and 
said  covered  room  was  not  full  of  passengers,  and  there  was  no  ground 
for  refusal,  yet  the  defendant  refused  to  carry  plaintiff  in  said  cabin, 
etc.,  causing  plaintiff  great  expense,  loss,  and  mortification.  A  third 
count  alleged  a  refusal  to  carry  generally,  stating  that  the  defendant  set 
up  no  ground  of  refusal  except  that  the  plaintiff  was  a  colored  man. 


308  REGULATIOxNS    OF    THE    CARRIER. 

Day  V.  Owen. 

This  count  contained  no  averment  that  plaintiff  offered,  or  was  ready 
and  willing  to  pay  the  fare. 

The  defendant  pleaded  the  general  issue,  and  appended  thereto  three 
notices  of  special  matter  to  be  shown  at  the  trial :  — 

"  1.  That  the  plaintiff  was  a  colored  man,  and  not  a  white  man;  and 
that  by  the  custom  of  navigation,  and  the  usage  prevailing  among  steam- 
boats employed  in  carrying  passengers  on  Detroit  River  and  Lake  Erie, 
colored  persons  were  not  allowed  the  privileges  of  cabin  passengers. 

"2.  That  by  the  regulation  and  established  course  of  business  of  the 
said  boat,  colored  persons  were  not  received  as  cabin  passengers,  and 
were  not  allowed  to  use  the  cabin  as  such  passengers ;  and  saiii  regula- 
tion and  course  of  business  were  averred  to  be  reasonable. 

"3.  That  the  plaintiff,  by  his  color  and  his  race,  was  excluded  from 
ordinary  social  and  familiar  intercourse  with  white  persons  by  the 
custom  of  the  country,  and  that  his  admission  into  the  cabin  of  said 
steamboat  would  have  been  offensive  to  the  other  cabin  passengers." 

General  demurrer  by  the  plaintiff,  which  was  overruled,  and  judgment 
for  defendant  for  costs  rendered ;  and  thereupon  the  plaintiff  brought 
error. 

Holding  said  notices  a  sufficient  defence  is  assigned  as  error. 

Walkers  &  Bussell,  for  plaintiff  in  error ;  S.  T.  Douglass,  for  defend- 
ant in  error. 

Manning,  J.  — The  declaration  contains  three  counts.  The  first  and 
second  for  refusing  to  carry  the  plaintiff  in  the  cabin,  the  third  for 
refusing  to  carry  him  generally. 

Tliis  last  count  is  bad,  as  it  contains  no  averment  that  plaintiff  offered, 
or  was  ready  and  willing,  to  pay  the  fare. 

The  notice  accompanying  the  general  issue  sets  up  three  several 
grounds  of  defence  to  the  declaration,  and  may  therefore  be  considered 
as  three  separate  notices.  The  demurrer  is  to  the  whole  notice  ;  and  if 
any  one  of  these  defences  is  good  to  the  other  counts  in  the  declara- 
tion, the  demurrer  was  properly  overruled,  and  the  judgment  of  the 
court  below  must  be  affirmed. 

The  second  ground  of  defence  stated  in  the  notice  is,  that  b}'  the 
regulations  and  established  course  of  business  of  the  steamer,  colored 
persons  were  not  received  as  cabin  passengers,  and  were  not  allowed  to 
use  the  cabin  as  such  passengers ;  and  avers  such  regulations  and 
course  of  business  to  be  reasonable. 

The  second  count  of  the  declaration  states  two  modes  of  carrjnng 
passengers,  — one  on  deck,  and  the  other  in  the  cabin.  It  then  alleges 
that  passengers  were  carried  either  way,  as  they  might  require,  on  paj'iug 


COLORED    PASSENGERS.  309 

Supreme  Court  of  Michigan. 

the  necessary  fare,  —  that  is,  cabin  fai?eif  they  wished  to  go  in  the  cabin, 
and  deck  fare  if  on  deck. 

The  right  to  be  carried  is  a  right  superior  to  the  rules  and  regulations 
of  the  boat,  and  cannot  be  affected  by  them.  If  defendant  had  refused 
to  carry  the  plaintiff  generally,  he  would  be  liable,  unless  he  could  show 
some  good  excuse  releasing  him  from  the  obligation.  While  this  is  a 
right  that  cannot  be  touched  by  rules  and  regulations,  the  accommoda- 
tion of  passengers  while  being  transported  is  subject  to  such  rules  and 
regulations  as  the  carrier  may  think  proper  to  make,  provided  they  be 
reasonable. 

The  right  to  be  carried  is  one  thing ;  the  privileges  of  a  passenger 
on  board  of  the  boat,  what  part  of  it  may  be  occupied  by  him,  or  he 
have  the  right  to  use,  is  another  thing.  The  two  rights  are  very  differ- 
ent. The  latter,  and  not  the  former,  right  is  subject  to  reasonable  rules 
and  regulations,  and  is,  where  such  rules  and  regulations  exist,  to  be 
determined  by  them.  Hence  the  allegation  we  have  already  adverted 
to  in  the  second  count,  as  it  relates  to  the  accommodation  of  passengers 
while  being  transpox'ted,  must  be  understood  as  a  statement  of  a  right 
that  is  subject  to  rules  and  regulations  where  they  exist ;  and  so  far, 
therefore,  as  that  count,  in  the  statement  of  that  right,  conflicts  with  the 
defendant's  notice,  or  the  notice  with  it,  the  notice  is  a  denial  of  the 
right  itself,  or,  more  properly  speaking,  an  admission  and  avoidance  of 
the  prima  facie  case  of  the  plaintiff. 

The  refusal  to  allow  plaintiff  the  privilege  of  the  cabin,  on  his  tender- 
ing cabin  fare,  was  nothing  more  or  less  than  denying  him  certain 
accommodations  while  being  transported,  from  which  he  was  excluded 
by  the  rules  and  regulations  of  the  boat. 

All  rules  and  regulations  must  be  reasonable ;  and,  to  be  so,  they 
should  have  for  their  object  the  accommodation  of  the  passengers. 
Under  this  head  we  include  every  thing  calculated  to  render  the  trans- 
portation most  comfortable  and  least  annoying  to  passengers  generally ; 
not  to  one,  or  two,  or  any  given  number,  carried  at  a  particular  time, 
l)ut  to  a  large  majority  of  the  passengers  ordinarily  carried.  Such  rules 
and  regulations  should  also  be  of  a  permanent  nature,  and  not  be  made 
for  a  particular  occasion  or  emergency.  In  pleading,  it  is  suflicient  to 
state  the  rule  or  regulation  ;  that  plaintiff  comes  within  it ;  and  to  aver 
its  reasonableness.  It  is  not  necessary  to  spread  upon  the  record  the 
facts,  which  may  be  more  or  less  numerous,  that  the  party  relies  on  to 
establish  its  reasonableness.  It  is  otherwise  where  defendant  refuses 
to  carry  the  plaintiff  generally.  In  such  cases,  the  facts  constituting 
his  excuse,  if  he  have  one,  must  appear  on  the  record,  that  the  couic 


310  REGULATIONS    OF    THE    CARRIER. 

Day  V.  Owen. 

may  determine  whether  it  be  good  or  bad.  But  the  reasonableness  of  a 
rule  or  regulation  is  a  mixed  question  of  law  and  fact,  to  be  found  b}^ 
the  jury  on  the  trial,  under  the  instructions  of  the  court.  It  ma}' 
depend  on  a  great  variety  of  circumstances,  and  may  not  improperly 
be  said  to  be  in  itself  a  fact  to  be  deduced  from  other  facts.  It  is  not 
to  be  inferred  from  the  rule  or  regulation  itself,  but  must  be  shown  pos- 
itively. 

The  notice  states  plaintiff  is  a  colored  person,  and  that,  by  the  rules 
and  regulations  of  the  boat,  colored  persons  were  excluded  from  the 
cabin.  The  reasonableness  of  the  rule,  if  it  be  reasonable,  does  not 
depend  upon  the  color  of  the  plaintiff,  or  on  the  class  of  persons  to 
which  he  belongs,  all  of  whom  are  alike  excluded,  but  on  the  effect 
the  carrying  of  such  persons  in  the  cabin  would  have,  not  on  the  defend- 
ant's business  as  a  carrier,  —  although  it  might  be  to  his  advantage, — 
but  on  the  accommodation  of  the  mass  of  persons  who  have  a  right 
and  are  in  the  habit  of  travelling  on  his  boat.  As  the  duty  to  carry 
is  imposed  by  law  for  the  convenience  of  the  community  at  large,  and 
not  of  individuals  except  so  far  as  they  are  a  component  part  of  the 
community,  the  law  would  defeat  its  own  object  if  it  required  the 
carrier,  for  the  accommodation  of  particular  individuals,  to  incommode 
the  community  at  large.  He  may  do  so  if  he  chooses,  but  the  law  does 
not  impose  it  on  him  as  a  duty.  It  does  not  require  a  carrier  to  make 
any  rules  whatever,  but  if  he  deems  it  for  his  interest  to  do  so,  looking 
to  an  increase  of  passengers  from  the  superior  accommodation  he  holds 
out  to  the  public,  to  deny  him  the  right  would  be  an  interference  with  a 
carrier's  control  over  his  own  property  in  his  own  way,  not  necessary  to 
the  performance  of  his  duty  to  the  public  as  a  carrier. 

The  second  defence  stated  in  the  notice  is,  we  think,  a  sufficient 
answer  to  the  second  count  of  the  declaration.  We  also  think  it  good 
as  to  the  first  count,  which  does  not  in  terms  make  mention  of  tlie 
carrying  of  passengers  on  deck.  It  states  defendant  refused  to  carrj^ 
the  plaintiff  in  the  cabin,  and  not  that  he  refused  to  carry  him  generally, 
and  seems  to  admit  the  carrying  of  passengers  in  other  parts  of  the 
boat  as  well  as  in  the  cabin,  and  therefore  does  not  make  out  a  case  of 
refusal  to  carry  generally.  The  other  questions  raised  on  the  argument 
it  is  not  necessary  to  decide,  as  the  one  we  have  been  considering  dis- 
poses of  the  whole  case. 

The  judgment  below  must  be  affirmed,  with  costs. 

Martin,  C.  J.,  and  Christiancy,  J.,  concurred.  Campbell,  J.,  did 
not  sit  in  this  case,  having  been  of  counsel  for  one  of  the  parties. 

Judgment  affirmed. 


MALE    PASSENGERS    IN    LADIES'    CAR.  311 

Supreme  Court  of  Wisconsin. 

2.  the  same  subject  — exclusion  of  male  passenger  from 

ladies'  car. 

Bass  v.  Chicago  and  North-Western  Kailway  Company.* 

Supreme  Court  of  Wisconsin,  1874. 

Hon.  Edward  G.  Ryan,  Chief  Justice. 
"     Orsamus  Cole,       1  j^^^^^^ 
*•     William  P.  Lyon,  J 

1.  Law  and   Fact  —  Reasonableness  of  Beg'ulation  reserving:  a  separate  Oar  for 

Ladies  and  their  Attendants.  —  The  question  of  the  reasonableness  of  regulations 
of  a  railway  company  affecting  third  persons  is  generally  a  mixed  question  of  law 
and  fact,  and  it  is  always  proper  to  submit  such  a  question  to  the  jury,  under  instruc- 
tions. Considered  as  a  question  of  law,  a  regulation  by  which  one  car  on  each 
passenger-train  is  set  apart  primarily  for  the  use  of  ladies,  and  gentlemen  accompany- 
ing them,  is  eminently  proper  and  reasonable. 

2.  Enforcement  of  Regulation  —  Passengers  must  be  supplied  with  Seats  at  all 

Events.  —  Such  regulation  must  be  reasonably  enforced.  The  continued  validity  of  the 
regulation  does  not  depend  upon  its  being  uniformly  and  indiscriniiuately  enforced 
against  all  men  not  accompanied  by  ladies.  If  there  be  no  sitting  room  in  the  regular 
passenger- cars  for  passengers  excluded  by  such  regulation  from  the  ladies'  car,  and 
there  be  room  to  seat  them  there,  they  cannot  be  left  standing  without  a  breach  of  the 
contract  of  carriage. 

3.  Duty  of  Obedience  by  Passengers  to  Proper  Regulations.  —  Passengers  are  bound 

to  submit  to  the  authority  of  the  officers  in  charge  of  a  railroad  train,  exercised  upon 
the  responsibility  of  the  railroad  company,  in  the  enforcement  of  order  upon  the  train 
and  in  the  execution  of  reasonable  regulations  for  the  safety  and  comfort  of  passengers 
and  the  security  of  the  train.  Therefore,  it  is  erroneous  to  chaige  that  "  if  there  was 
no  room  for  him  (the  passenger)  to  sit  in  any  of  the  cars  except  the  smoking  and 
ladies'  cars,  he  had  a  right  to  enter  the  ladies'  car  although  there  was  a  regulation 
to  the  contrary,"  and  to  refuse  an  instruction  to  the  effect  that  "  if  the  plaintiff 
attemi)ted  to  enter  the  ladies'  car  after  being  refused  admittance  to  it,  the  defendant's 
servants  had  a  right  to  use  sufficient  force  to  prevent  him  from  entering." 

Appeal  from  the  Circuit  Court  of  Outagamie  County. 

The  complaint  averred,  in  substance,  that  on  June  4,  1872,  the 
plaintiff  was  received  into  one  of  the  defendant's  passenger-trains  at 
Fond  du  Lac,  to  be  conveyed  as  a  passenger  from  that  city  to  Appleton 
for  the  sum  of  $1.45,  which  was  paid;  that  there  was  no  room  in  the 
passenger-cars,  except  the  rear  car,  and  the  plaintiff  was  compelled  to 
take  passage  in  the  rear  car,  or  in  the  smoking-car,  which  was  offensive ; 
that  after  riding  in  the  smoking-car  to  Oshkosh,  he  entered  the  rear  car 
while  the  same  was  crossing  the  bridge  over  Fox  River  at  Oshkosh ; 
and  that  while  crossing  that  bridge  the  defendant's  servants,  employed 

•  Reported,  36  Wis.  450. 


ol2  KKUULATIOXS    OF    THE    CARRIER. 

Bass  V.  Chicago  and  North-Western  Railway  Company. 

in  the  management  of  that  train,  forcibl}'  seized  him,  and  violently  pushed 
and  dragged  him  out  of  the  car  upon  the  platform,  without  any  request 
to  leave,  or  any  explanation,  thereby  injuring  his  person  and  endanger- 
ing his  life.  The  answer  denied  most  of  these  averments,  and  alleged, 
in  substance,  that  the  car  into  which  the  plaintiff  entered  was  a  ladies' 
car,  set  apart  by  a  regulation  of  the  company  for  ladies,  and  for  gentle- 
men accomi)anying  ladies,  as  the  plaintiff  knew ;  that  the  plaintiff  was 
informed  before  entering  that  he  could  not  go  into  said  car,  and  was 
requested  to  take  a  seat  in  the  car  next  in  front  of  the  ladies'  car,  in 
which  there  were  vacant  seats;  and  that  the  defendant's  servants  used 
only  so  much  force  as  was  necessary  to  remove  the  plaintiff. 

At  the  opening  of  the  trial,  the  defendant's  counsel  objected  to  the 
introduction  of  any  evidence,  on  the  ground  that  the  complaint  did  not 
state  a  cause  of  action  ;  but  the  objection  was  overruled.  The  evidence 
for  the  plaintiff  tended  to  prove  the  allegations  of  the  complaint  as 
above  stated  ;  that  at  Oshkosh,  when  the  plaintiff  sought  admission  to 
the  rear  car,  he  found  the  door  locked,  and  stood  on  the  platform  until 
the  train  was  starting,  when  a  brakeman  and  a  friend  of  his  came  on  the 
platform  ;  that  the  brakeman  unlocked  the  door  and  admitted  his  friend, 
and  stepped  to  one  side,  when  the  plaintiff  passed  in,  and  when  going 
down  the  aisle  he  was  seized  by  the  brakeman,  who  attempted  to  pull 
him  out,  and  afterwards  succeeded  by  the  aid  of  another  person ;  that 
tlie  bridge  was  an  open  one,  and  a  person  falling  from  the  train  would 
be  likely  to  fall  into  the  river;  that  the  plaintiff 's  hand  and  arm  were 
cut  and  bruised  in  the  scuffle,  and  his  ring  and  cane  broken ;  that  he 
knew  the  rear  car  was  designated  as  a  ladies'  car,  but  liad  ridden  in 
that  car,  and  known  others  to  ride  in  it,  unaccompanied  by  ladies,  many 
times.  Evidence  was  introduced,  under  objection,  tending  to  show  that 
it  was  customary  for  the  brakeman  to  admit  gentlemen  without  ladies  to 
(his  car,  on  receiving  a  little  money  or  other  consideration;  that  the 
smoking-car  was  rudely  furnished  with  wooden  seats,  and  was  a  second- 
class  car ;  that  there  was  only  one  other  car  besides  the  ladies'  car ;  and 
that  the  latter  was  not  full,  but  all  the  seats  of  the  other  car  were  filled. 

The  evidence  for  the  defence  tended  to  show  that  the  rear  car  was 
set  apart  for  ladies  and  for  gentlemen  accompanying  them  ;  that  it  was 
the  custom,  when  the  brakeman  knew  there  was  no  room  in  other  cars, 
from  his  own  observation,  to  allow  gentlemen  to  go  into  the  ladies'  car; 
that  this  regulation  was  for  the  protection  of  ladies,  and  its  enforce- 
ment rested  somewhat  in  the  discretion  of  the  brakeman ;  that  at  the 
time  of  the  difficulty  there  were  vacant  seats  in  the  gentlemen's  car; 
ihat  the  plaintiff  was  notified  by  the  brakeman  not  to  go  into  the  ladies' 


MALE    PASSENGERS    IN    LADIES'    CAR.  313 

Supreme  Court  of  Wisconsin. 

car,  and  was  requested  to  take  a  seat  in  the  other  ear  or  to  wait  until 
the  conductor  came ;  and  that  the  person  who  assisted  in  pushing  the 
plaintiff  had  nothing  to  do  with  the  train. 

The  court  charged  the  jury,  among  other  things,  in  substance,  that 
the  regulation  excluding  gentlemen  unaccompanied  by  ladies  from  the 
ladies'  car,  while  there  were  sufficient  room  and  comfortable  seats  in 
other  cars,  and  that  admitting  others  into  that  car  when  the  brakeman 
knew  that  the  other  cars  were  crowded,  was  a  reasonable  one,  and  that 
the  company  might  reasonably  enforce  it.  "But  to  entitle  the  com- 
pany so  to  enforce  the  regulation,  I  think  it  should  have  been  observed 
and  kept  by  the  company  itself;  and  that,  if  you  find  from  the  evidence 
that  the  company,  by  its  officers,  at  and  before  the  time  when  the 
plaintiff  was  a  passenger  as  shown  in  this  case,  was  in  the  daily  habi" 
of  disregai'ding  the  regulation,  by  allowing  pei'sons  other  than  ladies, 
and  gentlemen  accompanied  by  ladies,  to  ride  in  that  car,  then  the  com- 
pany cannot  insist  that  such  other  persons  so  allowed  to  enter  that  car 
were  not  lawfully  entitled  k)  their  seats  therein." 

The  instructions  given  and  refused  as  to  the  right  of  the  plaintiff  to 
enter  the  ladies'  car  are  sufficiently  stated  in  the  latter  part  of  the 
opinion. 

Verdict  for  the  plaintiff  for  $4,500,  and  judgment  accordingly;  from 
which  the  defendant  appealed. 

William  Rugei\  for  appellant;   Ten/or  &  Sutherland^  for  respondent. 

Ryan,  C.  .j.  — The  learned  judge  of  the  court  below  charged  the  jury 
that  the  appellant's  regulation  setting  apart  a  car  in  each  passenger- 
train  primarily  for  the  separate  use  of  women,  and  men  travelling  with 
them,  is  a  reasonable  one.  He  did  not  submit  the  question  to  the  jury, 
and  both  parties  appear  to  have  assented  to  the  instruction. 

The  general  rule  to  be  found  in  the  books  is  that  the  reasonableness 
of  such  regulations  is  a  mixed  question  of  law  and  fact,  to  be  submitted 
to  the  jury  under  proper  directions.^  And  at  least  one  court,  pointing 
the  distinction  between  by-laws  of  a  corporation  affecting  the  corpora- 
tors only,  and  regulations  affecting  third  persons,  has  held  that  the 
reasonableness  of  such  by-laws  rests  in  their  lawfulness,  and  is  there- 
fore a  pure  question  of  law ;  while  the  lawfulness  of  such  regulations 
rests  in  their  reasonableness,  and  is  therefore  a  pure  question  of  fact.^ 
We  cannot  think  that  the  latter  proposition  is  well-founded  in  principle 
or  sustained  by  authority,  as  applied  to  regulations  affecting  passengers 
by  railroad  in  transitu.     Many  cases,  without  passing  expressly  on  the 

1  1  Redf.  on  Rys.  88.  435;  Morris  etc.  R.  Co.  v.  Ayres,  29  N.  J.  L. 

2  The  State  v.  Overton,  24  N.  J.  L.  (4  Zab.)        393. 


314  REGULATIONS    OF    THE    CARRIER. 

Bass  V.  Chicago  and  North-Western  Railway  Company. 

point,  deal  ■with  the  propriety  of  such  regulations  as  with  a  question  of 
law.  Even  in  the  case  in  4  Zabriskie,  the  court  does  so  arguendo.  Per- 
haps it  is  practically  so  in  plain  cases ;  for  courts  would  not  hesitate  to 
overrule  the  findings  of  juries  against  their  own  clear  views  of  the  reason- 
ableness or  unreasonableness  of  such  regulations.  But  there  may  well 
be  cases  of  doubt,  largely  of  the  nature  of  questions  of  fact,  in  which 
courts  would  not  be  justified  in  declining  to  take,  or  in  disregarding, 
the  finding  of  the  jury.  It  may  be  said  to  partake  of  the  character  of 
debatable  ground  between  court  and  jury,  and  is  so  properly  held  to  be 
a  mixed  question  of  fact  and  law.^  And  it  is  always  proper  to  submit 
the  question,  under  instructions,  to  the  jury.^ 

In  this  case,  regarding  it  in  the  light  of  a  question  of  law,  we  entirely 
■concur  with  the  court  below  in  the  opinion  that  the  regulation  in  ques- 
tion is  an  eminently  reasonable  and  proper  one. 

In  JencTcs  v.  Coleman,  Mr.  Justice  Story  likens  the  duties  of  carriers 
of  passengers  by  steamboat  to  those  of  innkeepers.  And  in  The  Com- 
monwealth V.  Power,  Shaw,  C.  J.,  after  saying  that  the  owners  of 
steamboats  and  railroads  are  in  this  respect  on  the  same  footing,  adds : 
"An  owner  of  a  steamboat  or  railroad,  in  this  respect,  is  in  a  condition 
somewhat  similar  to  that  of  an  innkeeper,  whose  premises  are  open  to  all 
guests.  Yet  he  is  not  only  empowered,  but  he  is  bound,  so  to  regulate 
his  house,  as  well  with  regard  to  the  peace  and  comfort  of  his  guests 
who  there  seek  repose,  as  to  the  peace  and  quiet  of  the  vicinity,  as 
to  repress  and  prohibit  all  disorderly  conduct  therein ;  and  of  course 
he  has  a  right,  and  is  bound,  to  exclude  from  his  premises  all  disorderly 
persons,  anc^,  all  persons  not  conforming  to  regulations  necessary  and 
proper  to  secure  such  quiet  and  good  order." 

This  authoritative  comparison  of  the  duties  of  railroad  companies  to 
their  passengers  to  those  of  innkeepers  to  their  guests  is  ver}'  sugges- 
tive of  the  scope  of  the  former. ^  And  of  course  the  power  to  regulate 
must  be  commensurate  with  the  duty  to  care  for  and  protect. ** 

The  use  of  railroads  for  the  common  carriage  of  passengers  has  not 
only  vastly  increased  travel  generally,  but  has  also  specially  led  women 
to  travel  without  male  companions.  To  such,  the  protection  which  is 
a  natural  instinct  of  manhood  towards  their  sex  is  specially  due  b^^ 
common  carriers. ^     And  in  view  of  the  crowds  of  men  of  all  sorts  and 


1  The  Commonwealth  v.  Power,  7  Mete.  Coleman,  ow«e,  p.  11;  Chamberlain  «.  Chand- 

B96;  Day  V.Owen,  5  Mich.  520;  8.  c.  ante,  p.  306.  ler,  3  Mason,  242;  Nieto  v.  Clark,  1  Cliff.  145. 

«  Jencks  v.  Coleman,  2  Sumn.  221;  s.  c.  *  1  Redf.  on  Rys.  S8-92. 

«n<c,  p.  11.  5  Chamberlain  v.  Chandler,  and  Nieto  v. 

*  See  Day  r.  Owen,  ante,  p.  306;  Jencks ».  Clark,  supra. 


MALE    PASSENGEKS    IN    LADIES '    CAR.  315 

Supreme  Court  of  Wisconsin. 

conditions  and  habits  constantly  travelling  by  railroad,  it  appears  to 
us  to  be  not  only  a  reasonable  regulation,  but  almost  if  not  quite  a 
humane  duty,  for  railroad  companies  to  appropriate  a  car  of  each  pas- 
senger-train primarily  for  women,  and  men  accompanying  them,  from 
which  men  unaccompanied  by  women  should  be  excluded,  and  even 
women,  or  men  accompanying  women,  of  offensive  character  or  habits ; 
so  as  to  group  women  of  good  character  on  the  train  together,  sheltered 
as  far  as  practicable  from  annoj'ance  and  insult.  It  is  a  severe  com- 
ment on  our  civilization  that  such  a  regulation  should  be  necessary,  but 
the  necessity  is  patent  to  all  experience  and  intelligence.  And  the  reg- 
ulation not  only  comes  within  the  principle  established  in  all  the  cases 
we  have  examined,  but  has  judicial  sanction.' 

It  is  not  enough  that  the  regulation  is  reasonable :  it  must  be  reason- 
ably enforced.  And  we  are  unable  to  agree  with  the  learned  judge  of 
the  court  below,  in  the  opinion  that  such  a  regulation,  to  remain  valid, 
must  be  strictly  and  uniformly  enforced.  We  cannot  think  that  the 
occasional  use  or  even  abuse  of  a  discretion  to  admit  into  the  ladies* 
car  persons  not  admissible  under  the  letter  of  the  regulation,  can  oper- 
ate to  abrogate  the  regulation  itself.  There  may  well  be  cases  of  age, 
or  infirmity,  or  other  ground  of  discrimination  in  which  the  regulation 
need  not  be  rigidly  enforced.  And  the  regulation,  for  the  convenience 
of  some  passengers,  should  not  be  enforced  to  the  violation  of  the  rights 
of  other  passengers.  Railroad  companies  have  no  right  to  overcrowd 
their  trains  to  the  inconvenience  of  passengers. ^  Passengers  are 
entitled  to  seats,  and  it  is  the  duty  of  the  officials  of  the  train  to  see 
that  they  have  them.  If  passengers  appropriate  more  than  one  seat 
each,  leaving  others  without  seats,  it  is  not  the  duty  or  the  right  of  the 
latter  to  wrangle  or  struggle  with  the  former  for  seats ;  it  is  the  duty  of 
ihe  proper  officers  of  the  train  to  regulate  that.  It  is  essential  that 
good  order  should  prevail  on  every  passenger-train ;  and  it  is  not  likely 
always  to  prevail  on  crowded  trains,  if  the  dignitaries  of  the  train  leave 
the  passengers  to  shift  and  scramble  for  themselves.  And  if  there  be 
not  sitting  room  for  passengers  excluded  by  the  regulation  from  the 
ladies'  car,  and  there  be  room  to  seat  them  there,  they  cannot  be  left 
standing  without  breach  of  the  contract  of  carriage.  But,  in  such 
case,  in  the  admission  of  male  passengers  into  the  ladies'  car,  the  object 
of  the  regulation  must  be  regarded  and  observed,  and  it  must  neces- 
sarily rest  in  the  discretion  of  the  proper  officials  of  the  train  to  select 

1  The  state  v.  Overton,  24  N.  J.  L.  435;  «  2  Redf.  on  Rys.  217;  Pittsburgh  etc.  R. 

Pittsburgh  etc.  R.  Co.  v.  Uinds,  53  Pa.  St.  512 ;       Co.  v.  Hinds,  ante,  p.  295. 
8.  c.  ante,  p.  295. 


316  REGULATIONS    OF    THE    CARRIER. 

Bass  V.  Chicago  and  North-Western  Railway  Company. 

those  to  be  admitted.  This  discretion  must  be  somewhere ;  and  the 
good  order  of  the  train  and  the  object  of  the  regulation  are  not  com- 
patible with  the  choice  of  passengers  to  make  their  way,  at  will  and 
without  license  or  excuse,  into  a  car  from  which  the  regulation  primarily 
excludes  them.  In  such  cases,  as  in  others,  it  would  not  comport  with 
the  comfort  and  convenience  of  the  passengers,  nor  always  with  their 
safety,  for  some  of  them  to  assert  their  rights  with  a  strong  hand. 
And  the  safety  and  comfort  of  the  passengers  generally  are  not  to  give 
way  to  the  safety  or  convenience  of  one  or  a  few.^  For  all  violations 
of  their  rights  as  passengers,  all  passengers  have  their  remedy  by  action 
on  the  contract  of  carriage ;  but  they  must  submit  to  the  necessary  and 
reasonable  discipline  of  the  train. 

"When  carriers  undertake  to  convey  passengers  by  the  powerful  but 
dangerous  agency  of  steam,  public  policy  and  safety  require  that  they 
be  held  to  the  greatest  possible  care  and  diligence.  The  personal  safety 
of  passengers  should  not  be  left  to  the  sport  of  chance  or  the  negli- 
gence of  careless  agents.  Any  negligence,  in  such  cases,  may  well 
deserve  the  epithet  of  gross."  ^  "  The  right  and  duty  of  toe  defendant, 
in  running  the  road,  to  establish  and  enforce  reasonable  regulations  for 
the  government  of  the  line  has  been  frequently  recognized  by  the  courts 
in  this  country.  The  safety  and  security  of  the  travelling  public,  as 
well  as  the  interest  of  the  railroad  itself,  require  that  the  right  and  duty 
exist  and  be  enforced.  Upon  that  ground  it  has  been  held  that  the 
defendants  and  their  servants  may  not  only  exclude  those  who  refuse 
to  pay  their  fare,  or  to  comply  with  such  reasonable  regulations  as  are 
made  for  their  government,  but  they  may  also  rightfully  inquire  into 
the  habits  or  motives  of  those  who  claim  the  right  of  passage.  While 
the  law  requires  of  the  company  the  adoption  of  such  regulations  as 
are  necessary  for  the  safety  and  convenience  of  passengers  in  their 
trains,  they  have  also  the  right  to  adopt  such  reasonable  regulations  as 
are  necessary  for  their  own  security ;  and  those  regulations  are  to  be 
mutually  observed.  If  they  are  not  complied  with  by  passengers,  the 
company  may  not  only  refuse  them  admission  within  their  cars,  but,  if 
they  are  within,  they  may  remove  them."^ 

These  views  are  sanctioned  by  many  reported  cases ;  and  they  impose 
great  responsibility  on  railroad  companies,  and  devolve  great  correlative 
power  upon  officers  in  charge  of  passenger-trains.  These  oflScers  may 
be  guilty  of  acts  of  arbitrary  oppression,  beyond  endurance,  towards 

1  Day  V.  Owen,  ante,  p.  306. 

«  Philadelphia  etc.  U.  Co.  v.  Derby,  U  How.  468, ;  s.  c.  ante,  p.  31. 

*  Stephen  v.  Smith,  29  Vt.  160. 


MALE    PASSENGERS    IN    LADIES '    CAR.  '317 


Supreme  Court  of  Wisconsin. 

passengers,  which  might  warrant  resistance.  But  we  feel  warranted  by 
principle  and  authority  to  hold,  that  in  the  enforcement  of  order  on  the 
train,  and  in  the  execution  of  reasonable  regulations  for  the  safety  and 
comfort  of  the  passengers  and  for  the  security  of  the  train,  the  authority 
of  these  officers,  exercised  upon  the  responsibility  of  the  corporations, 
must  be  obeyed  by  passengers,  and  that  forcible  resistance  cannot  be 
tolerated.  They  act  on  the  peril  of  the  corporation  and  their  own. 
Indeed,  as  that  fictitious  entity,  the  corporation,  can  only  act  through 
natural  persons,  its  officers  and  servants,  and  as  it  of  necessity  commits 
its  trains  absolutely  to  the  charge  of  officers  of  its  own  appointment, 
and  passengers,  of  necessity,  commit  to  them  their  safety  and  comfort 
m  transitu,  under  conditions  of  such  peril  and  subordination,  we  are 
disposed  to  bold  that  the  whole  power  and  authority  of  the  corporation, 
pro  hoc  vice,  is  vested  in  these  officers ;  and  that  as  to  passengers  on 
l)oard,  they  are  to  be  considered  as  the  corporation  itself;  and  that 
the  consequent  autliority  and  responsibility  are  not  generally  to  be 
straitened  or  impaired  by  any  arrangement  between  the  corporation  and 
the  officers ;  the  corporation  being  responsible  for  the  acts  of  the  offi- 
cers in  the  conduct  and  government  of  the  train,  to  the  passengers 
travelling  by  it,  as  the  officers  would  be  for  themselves  if  they  were 
themselves  the  owners  of  the  road  and  train.  We  consider  this  rule 
essential  to  public  convenience  and  safety,  and  sanctioned  by  great 
weight  of  authority.^ 

On  the  trial  in  the  court  below  there  was  evidence  tending  to  show 
that  the  respondent,  being  a  passenger  on  the  appellant's  train,  to  which 
a  ladies'  car  was  attached,  was,  with  other  male  passengers,  kept  by 
the  officers  of  the  train  without  a  seat,  there  being  no  unoccupied  seats 
except  in  the  ladies'  car ;  that  he  had  been  in  the  smoking-car,  in  which 
he  was  not  bound  to  remain  ;  and  that  he  and  others  stood  for  some 
time  in  one  of  the  ordinary  passenger-cars  without  attention  from  the 
officers  of  the  train.  If  these  were  the  facts,  without  some  special 
excuse  for  the  neglect,  it  is  plain  that  the  officers  of  the  train  were 
guilty  of  a  breach  of  duty  to  the  passengers  so  left  standing.  There 
was  evidence  tending  to   show  that  the  respondent  then   went  to  the 

1  The  Commonwealth  v.  Power,  7  Mete.  v.  New  York  etc.  R.  Co.,  106  Mass.  160;  Sulli- 

596;  Day  v.  Owen,  ante,  p.  30G;   Jencks  v.  van    v.    Phila.   etc.   R.   Co.,  3G  Pa.  St.  2:U; 

Coleman,  ante,  p.  11;  Pittsburgh  etc.  R.  Co.  Pennsylvania  R.  Co.  v.  Vandiver,  36  Pa.  St. 

V.  Hinds,  ante,  p.  295;  Phila.  etc.  R.  Co.  v.  298;  Sherley  v.  Billings,  8  Bush,  147;   Hig- 

Derby,  ante,  p.  31;  Chamberlain  v.  (Jhandler,  gins  v.  Watervliet  Turnpike  Co.,  46  N.  Y.  23; 

3  Mason,  243;   Nieto  v.   Clark,  1  Cliff.  145;  Baltimore   etc.    R.   Co.  v.  Blocher,   27  Md. 

.Stephen  v.  Smith,  29  Vt.  ICO;  Moore  v.  Fitch-  277;  flhicago  etc.  R.  Co.  v.  Parks,  18  111.  4C0; 

burg  R.  Co.,  4  Gray,  4(;5;  Vinton  v.  Middle-  s.  c.  post,  p.  319;  tioddard  v.  Grand  Trunk 

8ex  R.  R.,  11  Allen,  304 ; «.  c.  ante,  p.  6 ;  Coleman  R.  Co., 57  Me.  202.   See  2  Redf.  on  Rys.  220,  230. 


318  REGULATIONS    OF    THE    CARRIER. 

Bass  V.  Chicago  and  North-Western  Railway  Company. 

ladies'  car  for  a  seat ;  that  he  found  the  door  at  first  locked ;  but  that 
on  its  being  unlocked  by  a  brakeman,  he  entered,  or  attempted  to  enter, 
the  car.  Whether  he  entered  the  car  peaceably  and  without  being  for- 
bidden to  enter  it,  or  whether  he  was  forbidden  and  attempted  to  enter 
the  car  forcibly,  were  questions  on  which  the  evidence  was  conflicting: 
and,  under  the  instructions  given  to  the  jury,  the  vei'dict  does  not 
determine  the  fact.  In  either  case,  it  does  appear  that  he  was  forcibly 
driven  upon  the  platform  of  the  car  while  the  train  was  crossing  a 
river,  when  a  fall  from  the  platform  would  probably  have  proved  fatal 
to  him. 

In  the  circumstances  stated,  if  such  were  the  truth,  we  cannot  think 
that  the  respondent  was  bound  to  wait  the  slow  pleasure  of  the  officials 
of  the  train  to  give  him  a  seat,  if  the  ladies'  car  was  open  to  his  peace- 
able entrance.  If  so  open,  we  think  that  he  might  well  enter  it  for  a 
seat ;  for,  as  we  have  said,  the  regulation  for  convenience  siiould  give 
way  to  the  right  of  contract.  And  if  the  oflScers  of  the  train  neither 
furnished  him  with  a  seat  nor  forbade  or  barred  his  entrance  into  the 
ladies'  car,  we  are  inclined  to  regard  it  as  equivalent  to  their  license  to 
him  to  enter  it.  But  if  his  entrance  were  barred  or  forbidden,  we 
cannot  hold  that  he  could  of  right  attempt  by  force  to  enter  the  car. 
If,  however,  being  neither  barred  nor  forbidden,  he  entered  the  car 
peaceably,  and  was  peaceably  in  it,  where  there  was  a  seat  for  him,  to 
which  he  was  entitled,  and  which  he  could  not  find  elsewhere,  we  hold 
that  he  was  there  riglitfuUy.  Being  there  rightfully,  under  his  contract 
of  carriage,  we  cannot  recognize  any  riglit  of  any  officer  of  the  train 
to  remove  him  by  force ;  certainly  not  without  proffering  him  a  seat 
elsewhere.  And  we  deem  it  our  duty  to  sa}^  that  no  circumstances 
could  have  justified  the  brakeman,  if  such  were  the  fact,  in  violently 
throwing  the  respondent  on  the  platform  while  the  train  was  moving 
over  the  bridge.  Some  discretion  and  humanity  are  as  essential  to  such 
persons  as  zeal,  due  or  undue. 

The  questions  of  fact  as  to  the  entrance  of  the  respondent  into  the 
car,  and  the  manner  of  it,  as  we  have  stated  them,  and  on  which  tho 
respondent's  right  to  recover  largely  depends,  do  not  appear  to  us  to 
have  been  properly  submitted  to  the  jury,  with  proper  instructions  to 
guide  them  in  their  finding. 

On  the  contrary,  the  learned  judge  refused  the  appellant's  request  to 
charge  the  jury  that  if  the  respondent  attempted  to  enter  the  ladies' 
car  after  being  refused  admittance  to  it,  he  was  a  wrong-doer  in  it  and 
the  appellant's  servant  had  a  riglit  to  use  sufficient  force  to  prevent 
him  from  entering  the  car.     And  he  did  charge  the  jury  that  if  there 


PURCHASE    OF    TICKET    liEFORE    ENTERING    VEHICLE.  31i> 

Supreme  Court  of  Illinois. 

was  no  room  for  the  respondent  to  sit  in  any  of  the  cars  except  the 
smoking  and  ladies'  cars,  he  had  a  right  to  enter  the  ladies'  car,  although 
there  was  a  regulation  to  the  contrary. 

The  instruction  refused  and  the  instruction  given  make  it  manifest 
that  the  learned  judge  was  of  opinion  that,  ])eing  without  a  seat  in  the 
other  cars,  the  respondent  had  a  right  to  enter  the  ladies'  car  by  force, 
after  being  forbidden  to  enter  it.  There  was  no  qualification  of  the 
charge  given.     And  the  jury  must  have  understood  it  as  we  do. 

With  the  views  which  we  have  already  expressed,  we  have  no  choice 
but  to  hold  this  charge  to  have  been  erroneous,  and  to  reverse  the  judg- 
ment of  the  court  below  and  remand  the  cause  for  a  new  trial. 

So  ordered. 


3.  discrimination  between  price  of  tickets  and  fares  paid 

on  the  train. 

Chicago,    Burlington,   and    Quincy   Eailroad    Company  v. 

Parks.* 


Supreme  Court  of  Illinois,  1857. 

s,  C 

I  Judges. 


Hon.  Walter  B.  Scates,  Chief  Justice. 
"     John  D.  Caton, 
"     Onias  C.  Skinner, 


1.  Discrimination  between  Price  of  Tickets  and  Fares  paid  on  the  Train.  —Passen- 

gers who  neglect  to  purchase  tickets  at  stations  before  embarking  on  the  train  may  be 
charged  additional  fare,  if  proper  conveniences  and  facilities  are  furnished  them  for 
procuring  tickets.  If  a  passenger  pays  on  the  train  from  one  station  to  another,  he 
may  be  compelled  to  pay  the  extra  charge  again,  if  he  desires  to  proceed  further, 
unless  he  procures  a  ticket  to  such  destination.  The  first  contract  of  carriage  termi- 
nates with  the  distance  paid  for. 

2.  Where  Passengers  may  be  expelled.  —  In  Illinois,  the  statute  prohibits  the  expulsion 

of  a  passenger  at  other  than  sonic  usual  stopping- place. 

3.  Measure  of  Damages  for  Unlawful  Expulsion.  —  A  passenger  who,  without  any 

difficulty,  is  put  off  from  a  train  between  stations  for  non-payment  of  fare,  sustains  a 
technical  injury,  for  which  he  may  bring  an  action;  yet  where  there  is  no  improper 
conduct  on  the  part  of  the  officers  in  charge  of  the  train,  nor  any  peculiar  circum- 
stances to  justify  it,  a  thousand  dollars  must  be  regarded  as  excessive  damages  for  the 
act. 

Appeal  from  Kane. 

Parks,  who  is  an  attorney,  sued  the  appellant  in  case,  averring  that 
the  appellant  was  the  owner  of  a  railroad  passing  from  Aurora  in  Kane 

•  Reported,  18  111.  460. 


320  REGULATIONS    OF    THE    CAUUIER. 

Chicago,  Burlington,  and  Quincy  Railroad  Company  v.  Parks. 

County,  through  Batavia,  to  Junction  in  Du  Page  County ;  that  he 
took  passage  on  board  the  cars  of  the  company  from  Aurora  to  Junction 
aforesaid,  and  was  wrongfully  expelled  therefrom  by  the  conductor  of 
the  train.  There  were  three  counts  in  the  declaration,  npt  matei'ially 
variant ;  the  third  count  averred  that  Parks  was  expelled  from  the  cars 
at  a  place  which  was  not  one  of  the  usual  stopping-places  of  the  trains 
of  the  appellant's  cars.  To  this  declaration  there  was  a  plea  of  the 
general  issue,  at  February  term,  1857,  of  the  Kane  Circuit  Court,  I.  G. 
Wilson,  judge ;  there  was  a  trial  by  jury,  and  a  verdict  and  judgment 
for  the  plaintiff  below  for  $1,000. 

A  motion  for  a  new  trial  was  denied. 

Sedgwick  and  Walker,  for  appellant ;  0.  D.  Day,  E.  Leland,  and  W. 
H.  Wallace,  for  appellee. 

Caton,  J.  —  Several  questions  of  considerable  public  importance  arise 
upon  this  record,  and  have  been  considered  by  this  court.  The  rail- 
road company  has  the  right  by  its  charter  to  fix  the  tariff  or  fare  which 
it  shall  receive  for  carrying  passengers  and  freight  upon  its  road. 
These  charges,  however,  must  be  uniform ;  that  is,  the  charge  should 
be  the  same  for  all  persons  similarly  situated,  and  for  all  fx-eights  of  a 
like  kind  and  quality,  for  a  given  service.  They  may  divide  passengers 
atfd  freights  into  classes,  with  descriptive  distinctions,  and  charge 
different  rates  for  different  classes,  for  a  given  service,  but  the  charge 
should  be  uniform  upon  all  persons  and  freights  embraced  within  each 
class.  Thus  may  every  one  know  what  he  has  to  pay,  beforehand,  for 
passage  or  freight,  by  inspecting  the  table  of  classes  and  charges  fixed 
by  the  company.  They  may  not  say  that  they  will  cliarge  A.  twice  as 
much  as  they  do  the  public  in  general.  While  they  show  favor  to 
individuals  or  classes,  by  carrying  them  free,  or  for  half-price,  if  the}' 
choose,  they  cannot  be  allowed  to  arbitrarily  oppress  an  individual  by 
charging  him  an  unusual  price,  simply  because  it  is  he.  Also,  tariffs 
of  charges  may,  under  tbe  same  rule  of  uniformity,  be  changed  at  the 
pleasure  of  the  company.  Nor  do  we  think  it  unreasonable  or  unjust 
that  the  company  should  charge  more  for  passengers  who  neglect  to  get 
tickets,  and  in  consequence  compel  the  conductor  to  collect  their  fares 
in  the  cars.  This  is  but  a  reasonable  penalty  for  the  neglect  of  the 
passenger,  and  a  just  compensation  to  the  company  for  the  additional 
inconvenience  to  which  they  are  subjected  by  being  compelled  to  receive 
the  fare  by  the  hands  of  the  conductor.  That  it  is  sensibly  and  appre- 
ciably more  to  the  advantage  of  the  company  to  have  their  fares  paid 
to  their  station-agents,  who  issue  tickets  therefor,  than  to  their  conduc- 
tors, our  common  observation  has  convinced  us.     But  to  justify  the 


PUKCHAbE    OF    TICKET    BEFORE    ENTERING    VEHICLE.  321 

Supreme  Court  of  Illinois. 

compaii}'  in  making  tliis  discrimination  in  the  fare  against  the  passenger 
who  neglects  to  purchase  a  ticket  at  the  company's  office,  the  company 
must  see  to  it  that  the  fault  was  not  that  of  its  own  agent,  instead  o ' 
the  passenger.  To  justify  this  discrimination,  every  reasonable  and 
proper  facility  must  be  afforded  the  passenger  to  procure  his  ticket. 
They  must  furnish  a  convenient  and  accessible  place  for  the  sale  of  the 
tickets,  with  a  competent  person  in  attendance  ready  to  sell  them,  which 
should  be  open  and  accessible  to  all  passengers,  for  a  reasonable  time 
l)efore  the  departure  of  each  train,  and  up  to  the  time  of  its  actual 
departure,  so  that  it  shall  really  be  a  case  of  neglect,  and  not  of  neces- 
sity, on  the  part  of  the  passenger,  and  not  the  fault  of  the  company. 
If  a  company  will  keep  its  ticket-office  closed  till  a  crowd  of  clamorous 
[)assengers  have  gathered  around,  so  as  to  make  it  dangerous  or  incon- 
venient for  females  or  infirm  persons  to  get  tickets,  surely  the  fault  is 
not  theirs,  but  the  company's,  if  they  do  not  procure  tickets  ;  and,  under 
such  circumstances,  to  charge  them  more  than  the  price  established  for 
tickets  would  be  but  an  imposition  and  an  outrage  which  the  law  can- 
not sanction. 

We  have  been  led  to  these  suggestions  upon  the  reasonable  facilities 
to  be  afforded  to  the  passengers  to  procure  tickets,  not  only  from  very 
common  complaints,  which  sometimes,  no  doubt,  are  well  founded,  that 
agents  too  often  delay  opening  their  offices  till  too  near  the  time  for  Ihe 
departure,  but  the  evidence  in  this  case  shows  that  the  usual  habit  of 
the  agent  at  Batavia,  the  place  where  the  passenger  should  have  got  his 
ticket,  was  such  as  to  have  prevented  the  plaintiff  from  procuring  a 
ticket  in  this  case.  He  swears  that  his  rule  was  to  keep  his  ticket-office 
open  till  it  was  time  for  the  train  to  arrive,  and  that  he  did  not  keep  it 
open  till  the  departure  of  the  train,  unless  he  chose  to,  or  if  he  had 
any  thing  else  to  do.  Had  such  been  the  case  on  the  morning  in  ques- 
tion, it  would  have  been  impossible  for  the  plaintiff  to  have  procured  a 
ticket,  for  he  came  in  on  the  cars,  and  consequently  could  not  well  buj' 
a  ticket  at  the  office  before  the  arrival  of  the  train.  Had  he  gone  to 
the  ticket-office  and  found  it  closed,  we  should  not  hesitate  to  say  that 
the  fault  was  tlie  ticket-agent's,  and  not  his,  and  that,  having  done  all 
he  could  to  procure  a  ticket,  he  was  entitled  to  be  transported  at  the 
ticket  fare.  Otherwise,  the  company  would  be  allowed  to  take  advan- 
tage of  its  own  wrong  or  that  of  its  servant,  and  make  the  party  with- 
out fault  pay  them  for  it.  The  evidence,  however,  in  this  case  shows 
that  tlie  ticket-office  was  open,  and  the  agent  ready  to  sell  tickets  dur- 
ing the  whole  time  the  train  was  at  the  station ;  so  that  it  was  the  fault 
of   the  plaintiff,  and  not  of   the  company,  that  he  did  not  procure  a 

21 


322  REGULATIOMS    OF    THE    CAUIUEK. 

Chicago,  Burlington,  and  Quincy  Railroad  Company  v.  Parks. 

ticket,  if  it  was  liis  duty  to  procure  one.     This  at  once  leads  us  to  that 
question,  as  arising  out  of  the  facts  in  this  case. 

It  appears  that  the  plaintiff  took  passage  on  the  cars  at  Aurora,  with- 
out a  ticket,  and  paid  the  conductor,  when  called  on  in  the  cars  for  his 
fare,  the  regular  price  to  Batavia,  to  which  place  he  took  and  paid  for 
a  passage.  He  paid  the  five  cents  more  than  the  price  of  a  ticket  for 
the  same  passage,  according  to  the  rules  established  by  the  company. 
No  complaint  or  remonstrance  seems  to  have  been  made  to  the  payment 
of  the  five  cents  more  than  the  price  of  a  ticket  for  the  passage  to 
Batavia,  which  was  the  destination  for  which  he  first  started.  While 
the  train  remained  at  Batavia,  the  plaintiff  concluded  to  go  on  to 
Junction,  which  is  the  next  station,  and  took  passage  for  that  point 
without  having  obtained  a  ticket.  After  the  train  had  started,  the  con- 
ductor applied  to  the  plaintiff  for  his  fare,  who  tendered  him  twenty 
cents,  which  was  the  price  of  a  ticket ;  but  the  conductor  demanded  of 
him  twenty-five  cents,  which  was  the  price  fixed  by  the  rules  of  the 
company  for  the  fare  from  Batavia  to  Junction  when  it  is  paid  to  the 
conductor.  The  plaintiff  claimed  that  as  he  had  already  paid  the  extra 
five  cents  on  his  passage  from  Aurora  to  Batavia,  he  was  not  bound  to 
pay  an  additional  five  cents  on  the  route  from  Batavia  to  Junction, 
while  the  conductor  claimed  he  must  pay  the  conductor's  fare  in  both 
cases.  In  this  we  have  no  doubt  the  conductor  was  right.  At  first  the 
plaintiff  took  passage  for  and  paid  his  fare  to  Batavia.  When  that 
journey  was  accomplished  that  contract  was  at  an  end,  and  all  connec- 
tion and  responsibility  between  the  parties,  so  far  as  the  first  payment, 
or  the  contract  growing  out  of  it,  was  concerned.  When  the  plaintiff 
again  got  on  to  the  cars  at  Batavia  and  started  for  Junction,  a  new 
journey  was  commenced,  as  independent  of  the  other,  which  had  already 
been  fully  performed,  as  if  he  had  come  over  that  part  of  the  road  the 
day  before,  or  even  as  if  he  had  never  been  on  the  cars  of  the  company 
before.  A  new  contract  had  to  be  made,  as  much  as  if  another  passen- 
ger had  got  on  at  Batavia  instead  of  the  plaintiff.  For  the  two 
passages  the  conductor  had  to  make  two  reports  and  separate  entries,  as 
much  as  if  the  two  journeys  had  been  performed  by  two  passengers. 
The  conductor,  then,  was  right  in  demanding  the  regular  fare  estab- 
lished by  the  rules  of  the  company,  and  the  plaintiff  occupied  the  posi- 
tion of  one  upon  the  cars  refusing  to  pay  the  regular  fare,  which,  by 
taking  his  seat  in  the  cars  without  a  ticket,  he  had  impliedly  agreed  to 
pay.  And  the  question  then  arises.  What  were  the  rights  of  the  parties 
under  such  circumstances  ?  What  was  it  then  the  duty  of  the  conductor 
to  do  ? 


PURCHASE  OF  TICKET  BEFORE  ENTERING  VEHICLE.    323 

Supreme  Court  of  Illinois. 

These,  we  think,  are  definitely  established  by  the  thirty-fourth  section 
of  the  law  providing  for  a  general  system  of  railroad  incorporations, 
which  is  this :  — 

"■  If  any  passenger  shall  refuse  to  pay  his  fare  or  toll,  it  shall  be  law- 
ful for  the  conductor  of  the  train  and  the  servants  of  the  corporation 
to  put  him  out  of  the  cars  at  any  usual  stopping-place  the  conductor 
shall  select." 

It  is  objected,  first,  that  the  company  had  the  right  to  remove  persons 
from  the  cars  who  refuse  to  pay  their  fare,  before  the  passage  of  this 
law,  and  as  this  statute  does  not  in  terms  forbid  the  putting  out  of  such 
a  person  at  any  convenient  and  safe  place  other  than  a  usual  stopping- 
place,  the  right  which  is  claimed  formerly  to  have  existed  to  put  the 
passenger  out  at  other  than  the  usual  stopping-places  still  remains 
unimpaired  by  the  act.  This  we  do  not  think  a  sound  construction  of 
the  act.  It  was  the  evident  intention  of  the  Legislature  to  regulate  the 
subject  of  which  the  section  treats,  without  reference  to  the  question 
whether  it  abridges  or  enlarges  previously  existing  rights.  It  means 
this  or  it  means  nothing.  Such,  we  have  no  doubt,  is  the  sound  con- 
struction of  the  act. 

It  is  next  objected  that  as  this  company  was  incorporated,  not  under 
this  general  law,  but  by  special  law  passed  long  before,  we  ought  not 
to  hold  that  it  was  the  intention  of  the  Legislature  to  make  this  section 
applicable  to  it.  This  question  of  intention  is  settled  by  the  last  section 
of  the  same  act,  which  says :  — 

"All  existing  railroad  corporations  within  this  State  shall  respectively 
have  and  possess  all  the  powers  and  privileges,  and  be  subject  to  all 
the  duties,  liabilities,  and  provisions  contained  in  this  act,  so  far  as  they 
shall  be  applicable  to  their  present  conditions,  and  not  inconsistent  with 
their  several  charters." 

This  thirty-fourth  section  is  certainly  as  applicable  to  one  road  as 
another ;  and  if  the  Legislature  had  the  right  to  impose  such  a  regulation 
upon  companies  already  in  existence,  there  can  be  no  doubt  that  it 
intended  to  do  so.  We  held,  in  the  case  of  The  People  v.  Wilson,^ 
that,  under  this  last  section,  this  very  railroad  company  might  claim  a 
benefit  under  this  same  act.  And  in  the  case  of  Galena  and  Chicago  Union 
Railroad  Company  v.  Loomis,^  we  held  that  the  thirty-eighth  section  of 
the  same  act  was  applicable  to  and  binding  upon  that  company.  That 
section  requires  each  locomotive  to  be  provided  with  a  bell  or  whistle, 
which  shall  be  sounded  at  road-crossings.     That  company  was  incorpo- 

1  17  TU.  167.  »  13  111.  548. 


324  REGULATIONS    OF    THE    CARRIER. 

Chicago,  Burlington,  and  Quincy  Railroad  Company  v.  Parks. 

rated  by  a  special  law,  before  the  passage  of  this  general  law,  and  hence 
was  situated,  in  that  respect,  the  same  as  this  company.  There  is 
nothing  in  the  charter  of  this  company  which  says  any  thing  about  its 
right  to  put  passengers  out  of  its  cars  for  refusing  to  pay  fare,  but  that 
right  is  claimed  as  an  incident  to  and  as  a  means  of  enforcing  the  right 
to  collect  fare,  so  that  the  regulation  in  question  does  not  interfere  with 
any  express  grant  of  power  contained  in  the  charter.  It  does  not 
interfere  with  the  right  to  collect  toll  from  passengers,  for  they  may 
demand  the  toll  of  all  persons  before  they  allow  them  to  take  their  seats 
in  the  cars,  or,  after  the  service  is  performed,  they  may  sue  and  recover 
the  fare  of  the  passenger.  But  after  the  company  has  allowed  the 
passenger  to  take  /his  seat  in  the  cars  and  started  with  him  without 
demanding  the  toll  and  without  objection,  it  provides  that  he  shall  not 
be  thrust  out  except  at  a  regular  stopping-place.  This  was,  no  doubt, 
deemed  essential  by  the  Legislature  to  the  safety  of  the  travelling  public, 
rather  than  leave  it  discretionary  with  every  conductor  to  say  arbitrarily 
what  is  a  safe  and  proper  place  to  put  the  passenger  off ;  and  when 
we  reflect  that  among  the  great  multitude  of  conductors  necessarily 
employed  throughout  the  State,  with  the  utmost  caution  on  the  part  of 
the  companies,  it  is  almost  inevitable  that  some  will  want  discretion,  while 
others  may  be  influenced  by  passion,  or,  worse  still,  an  exaggerated 
notion  of  their  authority  and  a  morbid  ambition  to  display  it,  we 
cannot  say  that  the  Legislature  acted  unwisely  in  prohibiting  them  alto- 
gether from  putting  off  passengers  for  the  non-payment  of  fare,  at 
other  than  usual  stopping-places.  The  case  may,  and,  no  doubt,  often 
will  happen,  that  a  person  may  very  innocently  and  unintentionally  find 
himself  without  the  means  of  paying  his  fare,  —  as,  where  the  money  he 
has  unexpectedly  turns  out  to  be  uncurrent,  or,  when  he  looks  for  his 
money  to  pay  his  fare,  he  finds  he  has  been  robbed. 

I  venture  the  assertion  now,  that  if  the  conductors  were  to  adhere 
to  the  positive  requirements  of  our  statute  which  prohibits  the  receiv- 
ing of  bills  of  banks  out  of  the  State  of  less  denomination  than  S5, 
they  would  in  every  train  find  more  or  less  persons  of  respectability 
and  character  who  had  taken  their  seats  without  a  doubt  of  their  ability 
to  pay  their  fare,  who  were  entirely  unable  to  do  so  ;  and  yet,  in  refusing 
to  take  such  money,  no  one  can  doubt  that  the  conductor  would  be  exer- 
cising a  strict  legal  right,  and,  I  may  say,  duty,  for  it  is  the  dutj'  of  all  to 
obey  that,  as  well  as  all  other  laws,  so  long  as  it  remains  in  force.  It 
was  impossible  for  the  Legislature  to  distinguish  between  such  cases  and 
those  where  the  passenger  fraudulently  takes  his  seat  and  then  refuses 
to  pay ;  and  rather  than  leave  it  to  the  discretion  of  the  conductor,  it 


PURCHASE  OF  TICKET  BEFORE  ENTERING  VEHICLE.    325 

Supreme  Court  of  Illinois. 

was  deemed  proper,  for  the  protection  of  the  travelling  public  from  even 
occasional  abuse,  to  provide  that  passengers  should  only  be  put  off 
at  usual  stopping-places  for  refusal  to  pay  the  fare,  for  that  is  the 
effect  of  the  provision. 

This  is  complained  of  in  the  argument  as  a  hax'dship,  and  as  prac- 
tically compelling  the  company  to  carry  all  persons  who  take  their  seats 
from  one  station  to  another ;  for,  ordinarily,  the  train  could  not  be  run 
l)ack  to  the  station  where  the  passenger  got  on,  without  getting  behind 
time.  Under  the  present  system  of  allowing  all  persons  to  take  their 
seats  in  the  cars  without  tickets  and  without  paj-ing  their  fare,  this  may 
be  so,  and  such  an  effect  is  certainly  to  be  regretted ;  but  it  is  not 
impossible  to  obviate  the  difficulty  by  requiring  prepayment,  although 
it  may  not  be  improbable  that  the  introduction  of  such  a  system  in  this 
country  at  the  present  time  would  be  attended  with  great  diflScuIties. 
But,  be  this  as  it  may,  we  cannot  doubt  the  power  of  the  Legislature  to 
pass  the  law  in  question,  if  they  deemed  the  public  safety  required  it. 
The  result  is  that,  in  this  case,  the  conductor  had  a  right  to  remove  the 
plaintiff  from  the  cars  because  he  refused  to  pay  the  fare  which  he  was 
authorized  to  demand  ;  but  he  was  not  authorized  to  put  him  off  at  the 
place  where  he  did,  which  was  not  a  usual  stopping-place,  but  from 
forty  rods  to  half  a  mile  from  the  Batavia  station.  The  statute  made  it 
his  duty  either  to  run  back  to  that  station,  or  to  take  him  on  to  the  next. 
Had  he  taken  him  on  to  Junction,  which  was  the  next  station,  the  com- 
pany would  have  had  a  right  of  action  for  the  fare,  which,  however 
inadequate  in  fact,  would  be  all  the  relief  the  law  could  afford  in  such 
a  case,  as  well  as  in  all  others  where  services  are  rendered  for  which 
the  party  refuses  to  pay  the  just  compensation. 

For  putting  the  plaintiff  off  the  train  at  a  place  not  allowed  by 
law,  a  technical  wrong  was  done  him,  for  which  he  undoubtedly  had 
a  rigiit  to  bring  this  action,  and  to  recover  such  damages  as  he  sus- 
tained for  the  wrong  done  him.  The  jury  allowed  him  $1,000  for 
those  damages,  which  the  Circuit  Court  refused  to  set  aside,  and  this 
decision  is  also  assigned  for  error.  We  cannot  hesitate  to  say  that  the 
damages  allowed  are  grossly,  not  to  say  outrageously,  excessive.  Al- 
though in  a  case  of  this  kind  this  court  will  interfere  with  a  verdict 
with  great  reluctance,  yet  we  will  not  hesitate  to  do  so  where  it  is 
apparent,  at  first  blush,  that  the  jury  have  misapprehended  the  law  of 
the  case,  or  misunderstood  the  facts,  or  else  have  been  influenced  by 
their  passions  or  their  prejudices  rather  than  the  law  and  the  facts.  It 
is  not  the  duty  of  courts  to  enforce  the  arbitrary  edicts  of  juries,  but 
it  is  their  duty  to  firmly  and  fearlessly  stand  between  the  party  and  the 


326  REGULATIONS    OF    THE    CARRIER. 

Chicago,  Burlington,  and  Quincy  Railroad  Company  v.  Parks. 

.iiuy  whenever  it  is  manifest  that  the  party  has  been  made  a  victim  to 
their  prejudices.  In  this  class  of  cases  great  latitude  should  no  doubt 
be  allowed  to  juries  in  their  estimate  of  the  damages,  but  to  this  there 
must  be  a  limit ;  and  should  we  refuse  to  interfere  in  this  case,  it  would 
be  equivalent  to  saying  to  juries,  in  all  cases  of  this  kind,  We  will  shut 
our  eyes  to  the  facts  of  the  case,  and  let  you  work  your  will  with  all 
parties  placed  in  your  hands.  Now,  do  with  them  as  you  please ;  we 
will  not  interfere. 

What  are  the  facts  which  the  jury  were  bound  to  consider  in  estimat- 
ing the  amount  of  damages  to  which  the  plaintiff  was  entitled?  The 
plaintiff  had  refused  to  pay  the  fare,  which  it  was  his  duty  to  pay,  and 
it  became  the  right  and  the  duty  of  the  conductor  to  remove  him  from 
the  cars.  This  he  did  in  as  kind  and  courteous  a  manner  as  practicable, 
without  violence  or  harshness  and  without  insult  or  contumely.  The 
refusal  of  the  plaintiff  to  pay  the  fare  was  not  a  matter  of  necessity, 
for  a  friend  offered  to  pay  the  additional  five  cents,  which  he  would  not 
allow  to  be  done ;  but  he  chose  rather  to  vindicate  what  he  no  doubt 
supposed  was  his  right,  in  which,  however,  we  have  seen  he  was  mis- 
taken, for  the  controversy  between  him  and  the  conductor  was  about  the 
five  cents,  and  not  about  the  place  where  he  should  be  left.  His  refusal 
to  pay  his  fare  was  from  his  will,  and  not  from  want.  He  chose  rather 
to  be  put  off  the  cars  than  to  allow  another  to  pay  the  disputed  five  cents, 
which  he  was  in  law  bound  to  pay.  Thus,  by  his  own  illegal  act.  he 
subjected  himself  to  all  the  mortification  consequent  upon  the  transac- 
tion, for  the  mortification  consists  in  being  removed  from  the  cars,  and 
not  in  the  place  of  removal.  A  sensitive  mind  would  have  been  quite 
as  much  pained  had  the  train  run  back  to  the  depot,  and  he  had  been 
expelled  in  the  presence  of  the  by-standers  as  well  as  the  passengers, 
as  to  have  the  removal  take  place,  say,  eighty  rods  from  the  depot ;  and 
yet  had  the  conductor  done  so,  no  wrong  would  have  been  done  to  the 
plaintiff,  and  he  would  have  had  no  cause  to  complain.  Of  what,  then, 
could  he  complain  ?  In  what  respects  wei'e  his  rights  violated  ?  In  this 
alone:  that  he  was  put  off  the  cars,  say,  eighty  rods  from  the  depot, 
instead  of  at  the  depot.  He  was  entitled  to  recover  whatever  damages 
which  he  sustained  by  being  put  off  at  that  place  instead  of  at  the 
depot.  But  it  rained  at  tlie  time,  and  he  had  to  walk  back  in  the  wet. 
There  is  no  evidence  that  he  took  a  cold,  or  in  an}'  way  became  indis- 
posed in  consequence ;  but,  on  the  contrary,  the  evidence  shows  that  he 
was  found  some  few  hours  afterward  at  his  place  in  court  at  Geneva, 
some  two  or  three  miles  from  Batavia,  so  that  there  were  no  special  dam- 
ages resulting  from  that,  more  than  the  discomfort  and  inconvenience 


PURCHASE  OF  TICKET  BEFORE  ENTERING  VEHICLE.    327 

Supreme  Court  of  lULaois. 

of  it.  There  is  no  evidence  showing  malice  on  the  part  of  the  com- 
pany or  the  conductor.  He  performed  his  unpleasant  task  with  evident 
reluctance,  and  without  ostentation  or  arrogance,  or  display  of  author- 
ity ;  and,  so  far  from  there  being  evidence  of  enmity  between  the 
parties,  the  testimony  would  lead  to  the  conclusion  that  a  friendly 
relation  existed  between  them. 

From  the  whole  evidence  in  the  case,  we  cannot  avoid  the  conclusion 
that  each  supposed  he  was  right  in  the  dispute  about  the  amount  of  the 
fare,  and  each  chose  to  stake  the  consequences  and  take  the  responsi- 
bility of  acting  upon  his  own  judgment ;  and  it  turns  out  that  the 
plaintiff  was  wrong  and  the  conductor  was  right.  Nor  is  there  any 
thing  in  the  case  to  lead  to  the  conclusion  that  the  conductor  put  the 
plaintiff  off  where  he  did,  instead  of  at  a  usual  stopping-place,  for  the 
purpose  of  annoying  him  or  discommoding  him,  when  he  knew  that  it 
was  his  duty  to  take  him  to  some  regular  stopping-place.  No  question 
or  controversy  was  made  as  to  the  place,  but.the  whole  question  between 
them  was  as  to  the  right.  As  a  matter  of  law,  it  was  no  doubt  the  dut}' 
of  the  conductor  to  have  known  of  this  statute,  and  to  have  obeyed  it ; 
but  it  does  not  follow  that  his  ignorance  and  violation  of  it  are  evidence 
of  malice,  for  which  smart-money  or  exemplary  damages  should  be 
inflicted  upon  the  company. 

Now,  in  view  of  all  these  circumstances,  can  any  impartial  and 
unprejudiced  mind  for  a  moment  tolerate  the  supposition  that  the 
plaintiff  was  entitled  to  $1,000  damages,  when  by  his  own  wrongful 
act  he  had  subjected  himself  to  the  liability  of  being  expelled  from 
the  cars  rather  than  allow  a  friend  to  pay  the  fare  for  him,  which  it  was 
his  duty  to  have  paid,  and  the  only  real  ground  of  complaint  which  he. 
has  is  that  he  was  put  off  a  short  distance  from  the  depot  instead  of  at 
the  depot?  The  very  statement  of  the  proposition  is  startling,  and 
carries  conviction  to  the  mind  at  once  that  the  jur}'  were  led  to  find 
their  verdict,  not  from  the  facts  alone,  and  the  law  as  applicable  to 
those  facts.  It  may  be,  and  prolnibly  is  the  case,  that  the  jury  sup- 
posed that  the  conductor  was  wrong  in  the  amount  of  his  charge,  and 
that  they  viewed  the  plaintiff  in  the  light  of  a  sacrifice  to  principle,  and 
that  he  had  been  outraged  when  manfully  resisting  oppression  and 
wrong.  Without  some  such  considerations  as  these,  we  cannot  suppose 
that  the  jury  honestly  arrived  at  the  verdict  which  they  rendered.  But 
such  a  view  of  the  case,  we  have  seen,  was  not  warranted  by  the  law 
and  the  facts.  The  mere  supposition  or  belief  of  the  plaintiff  himself 
that  he  was  all  in  the  right,  and  that  he  was  submitting  to  wrong  for  the 
sake  of  defending  a  principle,  did  not  entitle  him  to  that  position  when 


328  REGULATIONS    OF    THE    CARRIER. 

Dunn  V.  Grand  Trunk  Railway. 

he,  in  fact,  was  in  the  wrong.     The  honesty  of  his  purpose  could  not 
put  the  other  party  in  the  wrong  when  he  was,  in  truth,  in  the  right. 

This  verdict  cannot,  upon  principle,  be  sustained.  To  uphold  it 
would  not  only  be  doing  a  great  wrong  to  the  defendant  in  this  par- 
ticular case,  but,  as  a  precedent,  would  be  doing  an  infinitely  greatei 
wrong  to  the  community,  who  might  suffer  by  it. 

The  judgment  must  be  reversed  and  the  case  remanded,  upon  the 
ground  alone  that  the  damages  are  excessive. 

Judgment  reversed. 


4.  PASSENGEES  UPON  FREIGHT-TRAINS  NOT  PRESUMED  TO  HAVE 
KNOWLEDGE  OF  REGULATIONS  FORBIDDING  THEIR  PRESENCE 
THERE. 

Dunn  v.  Grand  Trunk  Railway.* 

Supreme  Judicial  Court  of  Maine,  1870. 

Hon.  John  Appleton,  LL.D.,  Chief  Justice. 

*'  Jonas  Cutting,  LL.D.,t 

"  Edward  Kent,  LL.D., 

'*  Charles  Walton,! 

«  Jonathan  Dickerson,  LL.D.,   [-  Judges, 

**  William  G.  Barrows, 

"  Charles  Danforth,! 

"  RuFUS  Tapley, 

If  a  passenger  enters  the  caboose-car  of  a  freight-train,  and  when  the  train  starts,  with- 
out being  requested  or  directed  to  leave,  remains  there  as  a  passenger,  contrary  to  the 
rules  of  the  company,  but  with  the  knowledge  of  the  conductor,  who  receives  from 
him  the  usual  fare  of  a  first-class  passenger,  the  corporation  incurs  the  sam6  liability 
lor  his  safety  as  if  he  were  in  their  regular  passenger-train. 

Action  by  Dunn  against  the  Grand  Trunk  Railway  Company,  for 
injuries  received  July,  1868,  while  riding  on  defendants'  railroad.  At 
the  time  of  the  accident,  plaintiff  was  riding  in  the  saloon-car  of  a 
freight- train.  At  the  trial,  it  appeared  that  the  company  issued  a  notice. 
May  23,  1866,  that  "passengers  would  not  be  allowed  to  travel  by 
freight-train  on  that  part  of  the  line  between  Portland  and  South  Paris." 
By  notice  September  8,  1868,  the  company  made  public  the  following 
rule:  That  "no  passenger  will  he  carried  in  the  brake-vans  attached 
to  freight-trains  without    written  authority  from   the    superintendent. 

*  Reported,  58  Me.  187.  t  Not  silting. 


PASSENGERS    OX    FREIGHT-TRAINS.  329 

Supreme  Judicial  Court  of  Maine. 

*  *  *  Any  conductor  allowing  a  passenger  to  travel  in  the  brake- 
van,  or  on  any  part  of  the  freight-lrain,  will  be  dismissed."  The  paz't 
of  the  road  mentioned  in  the  first  notice  was  that  whereon  plaintiff  was 
travelling.  The  conductor  made  no  objection,  and  collected  fare  as 
from  a  first-class  passenger.  The  verdict  was  for  plaintiff,  and  defend- 
ants appealed. 

P.  Barnes,  for  appellants ;  ^   T.  H.  Haskell,  for  appellee. 

Appleton,  C.  J. — The  defendants  are  common  carriers  of  passen- 
gers and  freight.  They  may  carry  freight  in  their  passenger-train,  or 
passengers  on  their  freight-train.  They  have  a  right  to  make  all  reason- 
able rules  and  regulations  in  the  management  of  their  business,  with 
which  those  in  their  employ,  or  those  making  use  of  their  means  of  con- 
veyance, are  bound  to  conform  when  informed  of  their  existence. 

By  one  of  the  regulations  of  the  defendant  corporation,  after  May  23, 
1866,  passengers  were  not  "allowed  to  travel  by  freight- ti'ains  on  that 
part  of  the  line  between  Portland  and  South  Paris."  The  regulation 
was  a  reasonable  one,  and  the  defendants  were  authorized  to  make  it. 
It  is,  however,  fairly  inferable  from  the  regulation  itself  that  previously 
passengers  had  been  permitted  to  travel  by  the  freight-train.  By  the 
notice  of  September  8,  1868,  dated  at  Montreal,  no  passengers  were  to 
be  carried  in  the  brake-vans  attached  to  freight- trains  "without  written 
authority  from  the  superintendent."  And  "any  conductor  allowing  a 
passenger  to  travel  on  the  brake-van,  or  any  part  of  the  freight- train, 
will  be  dismissed." 

The  plaintiff  went  aboard  the  freight- train,  in  the  saloon-car,  and  was 
there  with  the  knowledge  of  the  conductor.  It  was  the  duty  of  the 
conductor  to  inform  him  of  this  regulation,  if  it  was  to  be  enforced, 
and  request  him  to  leave.  If  no  notice  was  given  of  this  rule,  and  no 
request  to  leave,  but  instead  thereof  the  usual  fare  was  received,  he  had 
a  right  to  suppose  himself  rightfully  on  board,  and  entitled  to  all  the 
rights  of  a  passenger.  Every  one  riding  in  a  railroad  car  is,  prima  facie, 
presumed  to  be  there  lawfully  as  a  passenger,  having  paid,  or  being  liable 
when  called  on  to  pay,  his  fare,  and  the  onus  is  upon  the  carrier  to 
prove  aflarmatively  that  he  was  a  trespasser.^  If  not  being  rightfully 
on  board,  and  being  advised  thereof,  the  plaintiff  neglected  or  refused 
to  leave,  the  conductor  had  a  right  to  remove  him,  using  no  more  force 
than  was  necessary  to  accomplish  that  object.^. 


1  Cited  Lygo  v.  Newbold,  9  Exch.  302;  Lu-  2  Pennsylvania  R.  Co.  v.  Books,  57  Pa.  St. 

cas  V.  Taunton  etc.  R.  Co.,  6  Gray,  70;  Rob-  346. 

ertson  v.  New  York  etc.  R.  Co.,  22  I5arb  01 ;  •■'  Fulton  v.  Grand  Trunk  R.  Co.,  17  Upper 

Cleveland  etc.  R.  Co.  v.  Bartram,  11  Oliio  St.  Canada  Q.  B.  428;  Ililliard  v.  Goold,  34  N.  H 

4.^7.                                                                •  230;  The  State  v.  Goold,  53  Me.  279. 


330  REGULATIONS    OF    THE    CAllRIER. 


Dunn  V.  Grand  Trunk  Eailway. 


The  regulations  of  the  defendant  corporation  are  binding  on  its  ser- 
vants. Passengers  are  not  presumed  to  know  them.  Their  knowledge 
must  be  affirmatively  proved.  If  the  servants  of  the  corporation,  who 
are  bound  to  know  its  regulations,  neglect  or  violate  them,  the  principal 
should  bear  the  loss  or  injury  arising  from  such  neglect  or  violation, 
rather  than  strangers.  The  corporation  selects  and  appoints  its  ser- 
vants, and  it  should  be  responsible  for  their  conduct  while  in  its  employ-. 
It  alone  has  the  right  and  the  power  of  removal. 

A  passenger  goes  on  board  a  freight-train,  enters  the  saloon-car, 
and  remains  there  when  the  train  starts,  against  the  rules  of  the  com- 
pany but  with  the  knowledge  of  the  conductor,  and  is  not  directed  or 
requested  to  leave,  but  pays  the  usual  fai-e  of  a  first-class  passenger  to 
such  conductor,  and  is  injured  on  his  passage  by  the  negligence  or  care- 
lessness of  the  railroad  corporation.  Is  he  entitled  to  compensation  for 
such  injury?  If  inert  matter  be  injured  or  destroyed  by  the  negligence 
or  carelessness  of  a  common  carrier,  its  owner  can  maintain  an  action 
and  recover  damages  as  a  recompense  for  such  injury.  Is  the  traveller 
entitled  to  the  protection  of  the  law  when  the  negligence  of  the  carrier 
destroys  his  goods,  and  without  its  protection  when  the  same  negligence 
injures  his  health  or  breaks  his  limbs?  If  any  extraordinary  danger 
arises  from  the  violation  of  the  known  rules  of  the  company,  —  as,  by 
-standing  on  the  cars  when  in  motion,  —  the  passenger  violating  the 
rules  assumes  the  special  risks  resulting  from  such  violation.  But  if 
the  act  of  the  passenger  in  no  wa}'  conduces  to  the  injury  received,  the 
carrier  must  be  held  responsible  for  the  necessary  consequences  of  his 
negligence  or  want  of  care.^ 

In  Zemp  v.  Wilmington,  etc.  Railroad  Company,'^  there  were  two  cars 
on  the  train,  and  the  plaintiff's  seat  was  in  the  forward  car.  Near 
the  door  on  the  inward  car  was  a  notice  that  passengers  should  not 
stand  on  the  platform.  The  train  was  running  over  an  unfinished  part 
of  the  road.  The  cross-ties  were  too  far  apart,  and  were  insufficiently 
spiked,  and  the  accident  arose  from  "  the  breaking  of  the  cleat  at  the 
end  of  one  of  the  rails."  All  the  other  passengers  were  inside  the  cars, 
and  none  of  them  were  injured. 

The  defence  was  that  the  injury  arose  from  the  plaintiff's  own  fault, 
in  standing  upon  the  platform  while  the  cars  were  in  motion.  The  ver- 
dict was  for  the  plaintiff,  which  the  court  refused  to  set  aside,  holdint: 
that  whether  the  plaintiff  had  no  notice  that  the  platform  was  a  prohib- 
ited place,  and  if  so,  then  whether  under  the  circumstances  his  own  act 
so  contributed   to  the  injurj^  as  to  exonerate   the  railroad,  who  were 

>  Baker  v.  Portland,  58  Me.  199.  s  9  Rich.  T^.  84. 


PASSENGERS    ON    FREIGIIT-TKAINS.  331 

Supreme  Judicial  Court  of  Maine. 

guilt}'  of  negligence,  were  for  the  jury.  The  plaintiff's  seat,  "  it  will  be 
recollected,"  observes  O'Neall,  J.,  "was  in  the  forward  car;  the 
notice  proved  was  in  the  rear  car,  on  the  platform  on  which  he  was 
standing  when  the  accident  occurred.  That  such  notice  is  not  enough 
to  change  the  liability  of  the  company  to  a  passenger  is,  I  think,  clear 
from  Story  on  Bailment^  sect.  558.  If  the  conductor  had  said  to  the 
plaintiff,  as  was  his  duty,  '  you  are  in  an  improper  place,'  and  he  had 
then  persisted  in  remaining,  it  might  have  been  that  this  would  have 
excused  the  company  from  any  consequences  which  might  have  fol- 
lowed." An  action  was  brought  against  a  railroad  company  by  a  pas- 
senger, while  travelling  in  one  of  its  gravel-trains.  The  defendant 
asked  the  court  to  instruct  the  jury  that  a  railroad  company  was  not 
liable  for  an  injury  which  might  happen  to  one  taking  passage  in  a 
gravel-train,  and  not  engaged  in  carrying  passengers.  This  requested 
instruction  was  held  to  be  properly  denied  in  Lawrenceburgh  and  Upper 
Mississippi  Railroad  Company  v.  Montgomery ^^  the  court  holding  that 
in  a  suit  brought  against  a  railroad  for  an  injury  occasioned  by  a  col- 
lision, it  was  not  sufficient  for  the  company  to  show  that  the  plaintiff 
was  acting  at  the  time  in  disobedience  of  a  proper  order  to  secure  his 
safety,  but  that  it  should  also  appear  that  the  injury  was  occasioned  by 
such  disobedience.  In  Watson  v.  Northern  Railway  Company,"^  the 
plaintiff,  travelling  in  the  defendant's  train  on  a  passenger-ticket,  went 
into  the  express  company's  compartment  of  a  car.  While  there,  owing 
to  the  negUgence  of  the  defendant's  servants,  the  train,  which  was 
stationary,  was  run  into  by  another  coming  up  behind  it,  and  the 
plaintiff's  arm  was  broken.  No  person  in  the  passenger-cars  was 
seriously  injured.  It  was  proved  that  notice  that  the  passengers  were 
not  allowed  to  ride  in  the  baggage-car  was  usually  posted  upon  the 
inside  of  the  door  of  the  passeoger-cars,  but  it  was  not  distinctly  shown 
that  it  was  there  on  that  day.  The  jury  found  that  the  plaintiff  was 
wrongfully  in  the  car,  but  tha<;  he  was  not  told  where  to  go  when  he 
bought  his  ticket,  nor  did  thq  conductor  order  him  out,  and  so  he  was 
not  to  blame.  "In  my  opinion,"  observes  Draper,  C.  J.,  "the  jury 
were  warranted  in  finding  that  the  plaintiff  did  not  so  contribute  (to  the 
injury)  as  to  deprive  him  of  the  right  to  recover.  Giving  the  fullest 
weight  to  the  considerations  urged  in  the  defence,  such  as  the  ticket 
which  the  plaintiff  had,  the  notices  stated  to  have  been  kept  up  in  the 
cars,  conceding  the  plaintiff  saw  them,  though  it  is  not  proved,  I  do  not 
think  they  preclude  the  plaintiff  from  recovering,  when  the  injury  he 
sustained   was  occasioned    by  collision  resulting  entirely  and   directly 

1  7  Infl.  475.  «  24  Upper  Canada  Q.  B.  98. 


332  REGULATIONS    OF    THE    CARRIER. 

Duun  V.  Grand  Trunk  Kailway. 

from  the  gross  negligence  of  the  defendants'  servants."  In  O'Domiell 
V.  Allegheny  Volley  Railroad  Company,  ^  in  a  suit  by  an  employee  of 
a  raih'oad  company,  who  held  the  relation  of  a  passenger,  the  court 
charged  that  the  baggage-car  is  an  improper  place  for  a  passenger  to 
ride ;  whether  the  rule  against  it  was  communicated  to  him  or  not,  if  he 
left  his  seat  in  a  passenger-car  and  went  into  the  baggage-car,  it  was 
negligence  which  nothing  less  than  a  direction  or  an  invitation  of  the 
conductor  could  excuse ;  and  such  invitation  should  not  be  inferred 
from  his  having  ridden  there  frequently  with  the  knowledge  of  the  con- 
ductor, without  his  objection.     Held,  to  be  error. 

That  a  railroad  corporation  cannot  repudiate  the  acts  of  its  agents  so- 
as  to  free  themselves  from  responsibility  for  their  negligence,  was  held 
in  Lackawanna  and  Bloomsburgli  Railroad  Company  v.  Chenewith,^ 
where  the  agents  of  a  railroad  company,  contrary  to  the  instructions 
and  rules  of  the  company,  at  the  request  of  the  owner  of  a  freight- 
car,  attached  it  to  a  passenger- car,  the  plaintiff  agreeing  to  run  all  risks  ; 
the  plaintiff  having  sustained  a  loss  by  the  negligence  of  the  defendant, 
brought  his  action  for  compensation.  The  same  defence  was  attempted  as 
in  the  case  at  bar.  The  plaintiff  was  not  a  trespasser,  "for,"  observes 
Thompson,  J.,  "he  was  there  by  permission,  and  under  the  contract  of 
parties  competent  to  give  him  authority  to  be  there.  *  *  *  When, 
therefore,  they  (the  defendants)  consented  to  hitch  on  his  (plaintiff's) 
car  to  the  passenger-train,  even  at  his  urgent  solicitation,  — and  we  have 
not  a  particle  of  evidence  that  other  inducements  to  do  the  act  were 
held  out,  excepting  freedom  from  responsibility  as  a  consequence  of  the 
attachment,  —  we  must  presume  it  was  done  with  a  view  to  the  compen- 
sation to  be  paid  on  the  one  hand,  and  the  usual  care  to  be  exercised 
on  the  other.  The  argument,  however,  is  that  the  plaintiff  was  guilty 
of  such  a  wrong  in  asking  permission  for  his  car  to  be  attached,  that, 
whether  the  act  contributed  to  the  disaster  or  not,  he  is  to  be  treated  as 
a  trespasser,  and  not  entitled  to  any  compensation  for  injuries  not  wil- 
fully done.  We  think  this  is  not  the  law,  unless  in  a  case  when  the  will 
of  an  agent  is  controlled  and  subverted  by  improper  influences,  he  is 
induced  to  do  that  which  is  manifestly  beyond  the  scope  of  his  powers. 
That  there  was  a  regulation  against  running  freight-trains  with  passen- 
ger-cars may  be  admitted,  although  it  was  not  properly  proved,  yet  that 
neither  proved  that  it  might  not  be  safely  done,  nor  that  if  the  company 
undertook  to  do  it  they  might  lay  aside  the  duty  of  care  and  commit 
such  cases  to  the  guardianship  of  chance." 

"When   a   railroad    company   admits   passengers   into   a   caboose-car 

'  59  Pa.  St.  2.39.  2  52  Pa.  St.  38S. 


PASSENGERS    ON    FREIGHT-TRAINS.  333 

Supreme  Judicial  Court  of  Maine. 

attached  to  a  freight-train,  to  be  transported  as  passengers,  and  takes 
the  customary  fare  for  the  same,  it  incurs  the  same  liability  for  the 
safety  of  the  passengers  as  though  they  were  in  the  regular  passenger- 
coaches  at  the  time  of  the  occurrence  of  the  injury. ^  In  Carroll  v.  Neiv 
York  and  Neto  Haven  Railroad  Company,^  the  plaintiff,  remarks  Bos- 
worth,  J.,  "took  a  seat  in  the  post-oflSce  apartment  of  the  baggage- 
car.  The  position  was  injudiciously  chosen,  and  may  be  assumed  to 
have  been  known  to  him  to  have  been  a  far  more  dangerous  one  than  a 
seat  in  a  passenger-car.  He  took  it  with  the  assent  of  the  conductor. 
He  was  not  there  as  a  trespasser,  or  wrongfully  as  between  him  and  the 
defendants.  So  far  as  all  questions  involved  in  the  decision  of  this 
action  are  concerned,  he  was  lawfull}^  there."  His  being  there  was  not 
such  negligence  as  would  exonerate  the  defendants  from  the  conse- 
quences of  their  negligence  or  want  of  care. 

The  plaintiff  was  not  entitled  by  law  to  be  carried  on  the  freight- 
train  contrary  to  the  regulations  of  the  defendant  company.  They 
might  have  refused  to  carry  him,  and  have  used  force  to  remove  him 
from  the  train.  Not  doing  this,  nor  even  requesting  him  to  leave,  but 
suffering  him  to  remain  and  receiving  from  him  the  ordinary  fare,  they 
must  be  held  justly  responsible  for  negligence  or  want  of  care  in  his 
transportation. 

The  question  before  the  court  was  whether  the  defendants  were  liable 
at  all  as  common  carriers.  The  defence  was  based  entirely  upon  a  reg- 
ulation of  the  company.  There  was  no  question  raised  as  to  the  general 
obligations  of  carriers.  Indeed,  none  is  raised  at  the  argument.  The 
counsel  for  defendants  rest  their  defence  on  the  rules  of  the  company. 
The  plaintiff  had  paid  the  usual  fare  of  a  first-class  passenger.  The 
defendants  had  received  it,  and  had  undertaken  the  transportation  of 
the  plaintiff  in  their  freight- train,  during  the  course  of  which  he  was 
injured  by  their  neglect  or  want  of  care.  Under  such  circumstances, 
the  judge  said  that  they  could  not  "  plead  their  regulation  in  release  of 
their  ordinary  liabilities,  but  they  were  just  as  liable  as  if  it  had  been  a 
passenger-train,  and  as  if  there  had  been  no  notice,  provided  plaintiff 
was  not  guilty  of  any  fault  or  want  of  ordinary  care  himself." 

Undoubtedly  a  passenger  taking  a  £i"eight-train  takes  it  with  the 
increased  risks  and  diminution  of  comfort  incident  thereto;  and  if  it 
is  managed  with  the  care  requisite  for  such  trains,  it  is  all  those  who 
embark  in  it  have  a  right  to  demand. ^  "We  have  said  in  Chicago 
and  Galena  Railroad  Company  \.  Fay," '^  observes  Breese,  J.,  "that 

J  Edgerton  v.  New  York  etc.  R.  Co.,  39  N.  '  Chicago  etc.  R.  Co.  v.  Hazzard,  26  111. 

Y.  227.  2  1  Duer,  518.  373.  *  16  111.  568. 


334  REGULATIONS    OF    THE    CARRIER. 

Dunn  V.  Grand  Trunk  Railway. 

a  passenger  takes  all  the  risks  incident  to  the  mode  of  travel,  and  the 
character  of  the  means  of  conveyance  which  he  selects,  the  party  fur- 
nishing the  conveyance  being  only  required  to  adapt  the  proper  care, 
vigilance,  and  skill  to  that  particular  means ;  for  this,  and  this  only, 
was  the  defendant  responsible.  The  passengers  can  only  expect  such 
security  as  the  mode  of  conveyance  affords." 

If  there  was  any  peculiar  risk  incident  to  transportation  on  a  freight- 
train,  the  counsel  should  have  called  the  attention  of  the  court  to  such 
special  difference,  whatever  it  may  be.  But  "the  responsibility  of  a 
railroad  company  for  the  safety  of  its  passengers  does  not  depend  on 
the  kind  of  cars  in  which  they  are  carried,  or  on  the  fact  of  payment  of 
fare  by  the  passenger."  ^  "The  evidence,"  says  Walker,  J.,  in  that 
case,  "shows  that  the  road  had  been  carrying  passengers  on  their  con- 
struction-trains, and  they  must  be  held  to  the  same  degree  of  diligence 
with  that  character  of  train  as  with  their  regular  passenger-coaches,  for 
the  safety  of  the  persons  and  lives  of  their  passengers." 

If  the  defendants  claimed  that  they  might  exercise  a  diminished 
degree  of  caution  arising  from  the  character  of  the  train,  they  should 
have  requested  a  corresponding  instruction. 

The  cases  to  which  our  attention  has  been  called,  so  far  as  we  have 
been  enabled  to  examine  them,  are  inapplicable.  In  Lygo  v.  Newhold^^ 
the  plaintiff  contracted  with  the  defendant  to  carry  certain  goods  for 
her  in  his  cart.  The  defendant  sent  his  servant  with  his  cart,  and  the 
Ijlaintiff,  by  the  permission  of  the  servant,  but  without  the  defendant's 
authority,  rode  in  the  cart  with  her.  On  the  way,  the  cart  broke  and 
the  plaintiff  was  thrown  out  and  injured.  Held,  that  as  the  defendant 
had  not  contracted  to  carry  plaintiff,  and  as  she  had  ridden  in  the  cart 
without  his  authority,  he  was  not  liable  for  the  personal  injury  she  had 
sustained.  But  in  that  case  it  does  not  appear  that  the  defendant  was  a 
common  carrier,  that  he  undertook  to  carry,  or  received  or  was  to 
receive  any  compensation  for  the  carriage  of  the  plaintiff.  In  Lucas  v. 
New  Bedford  and  Taunton  Railroad  Company,^  it  was  held  that  a  person 
who  enters  the  cars  of  a  railroad  corporation,  not  as  a  passenger,  but 
for  the  purpose  of  assisting  an  aged  and  infirm  relative  to  take  a  seat 
as  a  passenger,  must,  in  order  to  maintain  an  action  against  the  cor- 
poration for  an  injury  sustained  while  leaving  the  cars,  show  that  he 
exercised  due  care ;  that  the  corporation  was  wanting  in  ordinary  care, 
and  that  such  negligence  was  the  cause  of  the  injury;  and  if  he 
attempts   to  leave  the  cars  after  they  have  started,  or,  finding  them 

'  Ohio  etc.  R.  Co.  v.  Muhling,  30  111.  9.  «  9  Exch.  302.  »  6  Gray,  65. 


POWER    TO    ESTABLISH    REGULATIONS.  335 

Whether  Reasonableness  of  Regulation  a  Question  of  Law  or  Fact. 

in  motion  as  he  is  going  out,  persists  in  making  progress  to  get  out, 
he  cannot  maintain  such  action  if  his  attempt  causes  or  contributes  to 
the  injury,  even  if  the  corporation  give  him  no  special  notice  of  the 
time  of  departure  of  the  cars,  and  are  guilty  of  negligence  in  starting 
the  cars,  and  in  a  jerk  occurring  after  the  first  start,  which  negligence 
also  contributes  to  the  injury.  But  in  that  case  the  plaintiff  was  not  a 
passenger ;  he  was  not  there  for  the  purpose  of  being  transported.  The 
servants  of  the  corporation  could  not  know,  and  were  not  obliged  to 
know,  the  purpose  for  which  he  came  aboard.  Besides,  the  plaintiff 
must  show  due  care.  The  implication  from  the  case  is,  that  with  due 
care  on  the  part  of  the  plaintiff,  and  negligence  on  that  of  the  corpora- 
tion, the  action  was  maintainable,  and  is  adverse  to  the  defendants. 

Exceptions  overruled, 
Kent,  Dickerson,  Barrows,  and  Tapley,  JJ.,  concurred. 


NOTES. 


§  1.  Power  of  Carriers  to  establisli  Regulations.  —  The  general  mle  is  that 
carriers  may  establish  reasonable  regulations  for  the  conduct  of  their  business. 
The  validity  of  every  regulation  depends  upon  its  reasonableness ;  and  by  some 
courts  this  is  held  to  be  a  question  of  fact,'  by  others  a  mixed  question  of  law 
and  fact,''  and  by  others  a  question  of  law.*  Thus,  it  is  said :  "  The  reasonable- 
ness of  a  rule  or  regulation  is  a  mixed  question  of  law  and  fact,  to  be  found  by 
the  jury  on  trial,  under  the  instructions  of  the  court.  It  may  depend  on  a  great 
variety  of  circumstances,  and  may  not  improperly  be  said  to  be  in  itself  a  fact 
to  be  deduced  from  other  facts.  It  is  not  to  be  inferred  from  the  rule  or  regula- 
tion itself,  but  must  be  shown  positively."  *  "  There  are  strong  reasons  why  the 
reasonableness  of  railroad  regulations  should,  in  the  absence  of  any  positive 
proof  as  to  their  effect,  be  submitted  to  the  court  as  a  question  of  law,  rather 
than  to  the  jury  as  one  of  fact.  Ordinarily,  jurors  are  not  aware,  nor  can  they 
readily  be  made  aware,  of  all  the  reasons  calling  for  the  rule.  They  are  apt  to 
listen  readily  to  any  allegations  of  injuries  on  railways.  What  one  jury  might 
deem  an  inconvenient  rule,  another  might  approve  as  judicious  and  proper. 
There  would  be  no  uniformity."  ^  There  is  great  force  in  this  last  utterance ; 
but  the  current  of  authority  seems  to  be  that  the  question  is  a  mixed  one  of  law 
and  fact.*  The  most  important  of  these  regulations  will  now  be  discussed  in 
detail. 

1  The  State  v.  Overton,  24  N.  J.  L.  436.  N.  Y.  455,  459;  Vedder  v.  Fellows,  20  N.  Y. 

2  Day  V.  Owen,  ante,  p.    306;  Jencks  v.       126. 

Coleman,  ante,    p.    11 ;   Du  Laurans  v.  St.  <  Per  Manning,  J.,  Day  v.  Owen,  6  Mich. 

Paul  etc.  R.  Co.,  15  Minn.  49;  Bass  v.  Chicago  620,  527 ;  ante,  p.  306. 

etc.  R.  Co.,  ante,  p.  311.  ^  Per  Strong,  J.,  Vedder  v.  Fellows,  20  N. 

»  Hibbard   v.  New  York    etc.  R.  Co.,  15  Y.  120, 131.  «  1  Redf.  on  Rye.  95. 


336  REGULATIONS    OF    THE    CARRIER. 


Notes. 


§  2.  Regxilations  as  to  Exhibition  and  Delivery  of  Tickets.  —  The  carrier  has 

the  right  to  make  reasonable  regulations  requiring  passengers  to  exhibit  and 
deliver  up  their  tickets  to  his  agent  or  servant.  The  circumstances  of  the  case 
make  such  a  rule  imperatively  necessary.  The  number  of  persons  carried,  for 
example,  in  railway  coaches,  the  great  variety  of  tickets  used,  the  frequency  of 
stations  upon  the  line,  the  fact  that  passengers  go  over  many  connecting  lines 
upon  a  single  journey  and  that  each  line  must  have  a  certain  portion  of  the 
ticket  in  order  to  demand  compensation  from  the  office  which  issued  the  ticket, — 
all  these  circumstances  concur  to  demonstrate  that  any  serious  restriction  laid 
upon  the  carrier's  power  in  this  respect  would  result  in  frequent  loss,  or  need- 
lessly enhance  the  difficulty  of  obtaining  compensation  for  carriage.  The  pas- 
senger who  refuses  to  comply  with  such  a  regulation  forfeits  his  right  to  further 
carriage,  and  may  be  ejected  from  the  train  by  the  servants  of  the  railway  com- 
pany, of  course  without  unnecessary  violence. ^ 

Regulations  of  this  kind  ought  not  to  be  condemned  unless  they  are  palpably 
unjust.^  It  is  uot  unreasonable  to  demand  of  the  passenger  the  surrender  of  his 
ticket  in  exchange  for  a  conductor's  check.'  But  a  passenger  ought  not  to  be 
<;ompelled  to  give  up  his  ticket  without  such  a  check  in  return,  at  a  considerable 
distance  from  his  destination,  when  there  are  intervening  stations  at  which  the 
train  stops.*  A  passenger  has  no  right,  however,  to  demand  a  conductor's  check 
in  exchange  for  his  ticket  after  the  train  has  left  the  station  immediately  pre- 
ceding that  to  which  his  ticket  entitles  him  to  be  carried.^  Persons  holding 
commutation  or  season  tickets  may  be  required  to  exhibit  them  whenever 
requested,  and  on  refusal  to  do  so  may  be  compelled  to  pay  the  regular  fare  as 
transient  passengers,  without  liability  on  the  part  of  the  company  to  repay  the 
same.^  And  on  refusal  to  pay  the  regular  fare,  the  commuter  may  be  ejected 
from  the  train  at  the  next  station.'  But  if  the  conductor  of  the  train  knows 
that  a  person  unable  to  produce  his  ticket  is  a  commuter,  and  that  his  ticket 
has  not  expired,  he  must  act  reasonably  under  the  circumstances.  K  the  pas- 
senger assures  him  that  he  has  the  ticket,  but  has  mislaid  it,  he  must  be  allowed 
to  ride  as  long  as  there  is  any  reasonable  expectation  of  finding  it.  Although 
such  passenger  had  signed  a  receipt  by  which  he  agreed  to  show  his  ticket 
to  the  conductor  in  the  same  manner  as  other  passengers,  when  required,  yet, 
in  the  absence  of  an  express  stipulation  in  the  contract  that  the  plaintiff  should 
pay  his  fare  unless  the  ticket  should  be  produced,  his  failure  to  produce  the 
ticket  was  not  such  a  breach  of  the  contract  as  to  justify  the  defendants  in 
rescinding  it,  and  treating  the  plaintiff  as  a  trespasser  on  the  train.^ 

1  The  People  v.  Caryl,  3  Park.  Cr.Ca8.326;  Pittsburgh  etc.  R.  Co.  v.  Hennlgh,  39  Ind. 

Baltimore  etc.  R.  Co.  v.  Blocher,  27  Md.277;  609. 

Loring  v.  Aborn,  4  Cush.  608 ;  The  State  v.  5  Illinois  etc.  R.  Co.  v.  Whitemore,  43  111. 

Campbell,  32  N.  J.  L.  309;  Hibbard  v.  New  420. 

York  etc.  R.  Co.,  15  N.  T.  455.    But  If  the  «  Bennett    v.  Railroad  Oo„  7  PhUa.    11; 

conductor  knows  that  the   passenger  has  Ripley  v.  New  Jersey  etc.  Transp.  Co.,  31  N. 

paid  his  fare,  he  has  no  right  to  expel  him  J.  L.  388;  Woodard  v.  Eastern  Counties  R. 

from  the  car  although  he  refuses  to  exhibit  Co.,  30  L.  J.  (M.  C.)  196. 
his  ticket.    Ibid.,  per  Comstock,  J.  ■  Downs  v.  New  York  etc.  R.  Co.,  36  Conn. 

*  Vedder  v.  Fellows,  20  N.  Y.  126.  287. 

s  Northern  R.  Co.  v.  Page,  22  Barb.  130.  8  Maples  v.  New  York  etc.  R.  Co.,  38  Conn. 

♦  The  State  v.  Thompson,  20  N.  H.  251;       557. 


EXHIBITION    AND    DELIVERY    OE    TICKETS.  337 


Forfeiture  under  English  Statute. 


In  England  it  is  provided  by  statute, i  that,  *'  If  any  person  travel,  or  attempt  to 
travel,  in  any  carriage  of  the  company,  or  of  any  other  company  or  party  using 
the  railway,  without  having  previously  paid  his  fare,  and  with  intent  to  avoid 
payment  thereof ;  or  if  any  person,  having  paid  his  fare  for  a  certain  distance, 
knowingly  and  wilfully  proceed  in  any  such  carriage  beyond  such  distance 
without  previously  paying  the  additional  fare  for  the  additional  distance,  and 
with  intent  to  avoid  payment  thereof;  or  if  any  person  knowingly  and  wilfully 
refuse  or  neglect,  on  arriving  at  the  point  to  which  he  has  paid  his  fare,  to  quit 
such  carriage,  every  such  person  shall  for  every  such  offence  forfeit  to  the 
company  a  sum  not  exceeding  fortj^  shillings."  By  the  same  statute  it  is  pro- 
vided i^  "For  better  enforcing  the  observance  of  all  or  any  of  such  regulations, 
it  shall  be  lawful  for  the  company,  subject,  etc.,  to  make  by-laws,  *  *  * 
provided  that  such  by-laws  be  not  repugnant  to  the  laws  of  that  part  of  the 
United  Kingdom  where  the  same  are  to  have  effect,  or  to  the  provisions  of  this 
or  the  special  act,  *  *  *  and  any  person  offending  against  any  such  by-laws 
shall  forfeit  for  every  such  offence  any  sum  not  exceeding  £5,  to  be  imposed  by 
the  company  in  such  by-laws  as  a  penalty  for  any  such  offence."  *  *  ♦ 
Under  §  103  of  the  foregoing  provisions  it  is  held  that  fi-audulent  intention  is 
the  gist  of  the  offence  of  travelling  without  having  paid  the  fare,'  and  the  fact 
that  a  person  rode  beyond  the  station  for  which  he  had  purchased  a  ticket,  but 
on  getting  out  of  the  train  tendered  the  full  local  fare  charged  by  the  company 
for  this  extra  distance,  after  delivering  up  his  ticket,  was  no  evidence  of  an 
intention  to  defraud  the  company.* 

Under  §  103,  by-laws  are  frequently  made  requiring  a  passenger  not  pro- 
ducing or  delivering  up  his  ticket  to  pay  his  fare  from  the  place  from  which  the 
train  originally  started,  or  in  default  thereof  forfeit  a  sum  not  exceeding  forty 
shillings.  In  Chilton  v.  London,  etc.  Bailway  Company,''  a  by-law  of  this 
description,  made  under  the  provisions  of  an  act  incorporating  the  railway 
company,  similar  in  effect  to  the  provisions  above  set  out  from  the  Companies 
Clauses  Consolidation  Act,  was  held  not  to  impose  a  penalty,  and  therefore 
justify  the  arrest  and  imprisonment  of  a  passenger  committing  a  breach  of  it,  in 
accordance  with  other  provisions  for  the  enforcement  of  penalties  in  the  act  in- 
corporating the  company .6  But  the  contrary  has  been  intimated  in  a  late  case.' 
In  London,  etc.  Haihoay  Company  v.  Watson,^  the  express  ground  of  the  decision 
of  the  Court  of  Appeal  was  that  such  a  by-law  did  impose  a  penalty,  recoverable 
only  before  justices,  according  to  the  provisions  of  the  act,**  and  not  as  a  debt 
in  a  court  of  civil  jurisdiction. 

§3.  Passenger  riding  without  Ticket,  or  without  a  Proper  Ticket. — As 
between  the  conductor  and  the  passenger,  the  ticket  purchased  by  the  latter 
of  the  proper  officer  of  the  carrier  is  the  only  evidence  of  the  right  of  the 

'Companies  Clauses  Consolidation  Act,  *  Dearden  v.  Townsend,  swpra. 

8  Vict.,  c.  20,  §  103.  "-  Ibid.,  §  109.  6  is  Mee.  &  W.  212. 

'  Dearden  v.  Townsend,  L.  R.  1  Q.  B.  10;  «  See  also  Ban-  v.  Midland  R.  Co.,  Irish 

Bcntham  v.  Hoyle,  i  Q.  B.  Div.  289;  London  Rep.  1  C.  L.  130. 

etc.  R.  Co.  V.  Watson,  3  C.  P.  Div.  42);  s.  c.  i  '  Brown  v.  Great  Eastern  R.  Co.,  2  Q.  B. 

C.  P.  Div.  118.    See  also  Regina  v.  Frere,  4  El,  Div.  406. 

&  Bl.  598;  McCarthy  v.  Dublin  etc.  R.  Co.,  8  4  c.  P.  Div.  118;  s.  c.  3  C.  P.  Div.  439. 

Irish  Rep.  3  C.  L.  511.  0  §  145. 


338  REGULATIONS    OF    THE    CARRIER. 


Notes. 


passenger  to  travel.  The  conductor  cannot  be  expected  to  accept  explanations 
of  the  passenger  in  regard  to  an  improper  ticket  which  he  produces,  or  when  he 
fails  to  produce  any  ticket  whatever. ^  A  passenger  wlio  has  mislaid  his  ticket 
is  entitled  to  a  reasonable  length  of  time  in  which  to  search  for  it.  He  is  not 
obliged  to  have  his  ticket  ready  in  hand  the  moment  the  conductor  may  demand 
that  it  shall  be  exhibited.^  The  loss  of  a  ticket  is  very  properly  held  to  fall 
upon  the  passenger.  Any  other  rule  would  be  a  source  of  endless  fraud  upon 
the  carrier  and  intolerable  delay  to  the  public.  "It  is  better  and  more  reason- 
able that  a  passenger  should  now  and  then  have  to  suffer  the  consequences  of 
his  own  want  of  care,  than  that  a  system  should  be  rendered  impracticable  which 
seems  necessary  to  the  transaction  of  this  important  branch  of  business. 
*  *  *  The  public,  whether  wisely  or  not,  desire  to  travel  at  the  rate  of  four 
or  five  hundred  miles  a  day,  and  that  rapidity  of  movement  cannot  be  accom- 
plished without  peculiar  arrangements  to  suit  the  exigency,  which  must  some- 
times be  found  to  produce  inconvenience."^  It  is  the  duty  of  the  passenger,  in 
case  he  has  lost  or  mislaid  his  ticket,  or  the  ticket  which  he  happens  to  hold 
does  not  entitle  him  to  proceed  further,  although  he  may  have  paid  the  price  of 
a  ticket  to  a  station  further  on,  to  pay  the  fare  demanded,  and  if  the  company 
afterwards  refuses  to  make  suitable  reparation  for  the  indignity  to  which  he  has 
been  exposed  in  being  compelled  to  repay  his  fare,  he  can  maintain  his  action 
against  it.*  But  the  circumstances  may  be  such  that  satisfactory  evidence  can 
be  given  to  account  for  the  failure  to  produce  the  customary  ticket,  in  which 
case  the  conductor  is  not  justified  in  following  out  his  instructions  literally  and 
in  disregard  of  such  evidence ;  as,  where  the  plaintiff  purchased  a  ticket  for  a 
berth  in  a  sleeping-car,  which  he  exhibited  to  the  porter,  who  showed  him  his 
berth,  which  the  plaintiff  made  preparations  to  occupy,  and  afterwards  the  ticket 
was  demanded  by  the  conductor  of  the  car.  The  ticket  could  not  be  found, 
having  been  lost  in  the  meantime  by  the  passenger.  The  train  had  not  yet  left 
the  station  where  the  ticket  was  purchased,  and  the  plaintiff  procured  from  the 
defendant's  agent  a  writing  certifying  that  he  had  paid  for  the  lierth  he  was 
occupying.  The  conductor  refused  to  accept  this  or  any  explanations  in  lieu  of 
the  ticket,  and  he  was  accordingly  ejected  from  the  sleeping-car.  It  was  held 
that  he  was  entitled  to  recover  the  price  paid  for  his  ticket,  and  reasonable  com- 
jiensation  for  the  trouble  and  inconvenience  occasioned  by  being  deprived  of  his 
berth  in  the  sleeping-car .» 
The  fact  that  one  of  the  defendant's  conductors  has  wrongfully  taken  a  pas- 

1  Townsend  v.  New  York  etc.  R.  Co.,  56  N.  »  Robinson,  C.  J.,  in  Duke  v.  Great  West- 
T.  295  (but  see  s.  c.  i  Hun,  217;  6  Thomp.  &  em  R.  Co.,  14  Upper  Canada  Q.  B.  377,  384; 
C.  49.5) ;  Frederick  v.  Marquette  etc.  R.  Co.,       s.  c.  id.  369. 

37  Mich.  342;  s.  c.  6  Reporter,  116;  Shelton  v.  <  Chicago  etc.  R.  Co.  v.  Griffin,  and  Fred- 
Lake  Shore  etc.  R.  Co.,  29  Ohio  St.  214;  Pull-  erick  v.  Marquette  etc.  R.  Co.,  mpra. 
man  Palace -Car  Co.  v.  Reed,  75  111.  125;  *  Pullman  Palace-Car  Co.  v.  Reed,  75  111. 
Weaver  t;.  Rome  etc.  R.  Co.,  3  Thouip.  &  C.  125.  An  informal  writing  by  the  ticket- 
270;  Jerome  v.  Smith,  48  Vt.  230;  Downs  v.  agent  to  the  effect  that  a  passenger  has  paid 
New  Haven  etc.  R.  Co.,  36  Conn.  287;  Chi-  his  fare,  becomes  a  ticket  as  good  as  the 
cago  etc.  R.  Co.  t;.  Griffin,  68  III.  499.  But  see  printed  one  usually  sold.  St.  Louis  etc.  R. 
Hamilton  v.  Third  Avenue  R.  Co.,  53  N.  Y.  25.  Co.  v.  Dalby,  19  111.  353,  365,  per  Caton,  C.  J. 

2  Curtis  V.  Grand  Trunk  R.  Co.,  12  Upper  See  also  Toledo  etc.  R.  Co.  v.  McDonough, 
Canada  C.  P.  89 ;  Maples  v.  New  York  etc.  R.  53  Ind.  289. 

Co.,  38  Conn.  557. 


EXHIBITION    AND    DELIVERY    OF    TICKETS. 


33i) 


Passenger  riding  without  Proper  Ticket. 


senger's  ticket  from  him  does  not  justify  him  in  getting  upon  another  train  of 
the  defendant's,  with  the  intention  of  riding  without  paying  his  fare.  The  con- 
ductor may  properly  expel  such  a  passenger  from  his  train.'  Likewise,  a 
passenger  may  be  compelled  to  pay  his  fare  who  has  in  his  possession  a  coupon 
ticket  which  entitles  him  to  ride  the  distances  indicated  by  the  coupons 
respectively,  but  who  has  lost  a  conductor's  check  which  had  been  given  him  in 
exchange  for  one  of  his  coupons.  In  such  a  case,  the  ticket  with  the  coupons 
remaining  attached,  entitling  him  to  ride  from  some  point  further  on  to  his 
destination,  is  no  evidence  to  the  conductor  of  his  right  to  ride  upon  that  section 
of  the  road  covered  by  the  coupon  detached  by  the  conductor  previously  having 
charge  of  the  train.^  If  the  passenger  has  paid  for  three  tickets  for  himself  and 
companions,  and  received  only  two,  the  production  of  these  two,  with  an  expla- 
nation as  to  the  failure  to  procure  the  third,  cannot  excuse  the  payment  of  fare 
demanded.^  A  railroad  company  is  under  no  obligation  to  carry  persons  for  less 
than  the  usual  rates.  If  it  chooses  to  do  so,  the  passenger  must  comply  with 
the  regulations  made  in  such  cases,  —  viz.,  show  a  permission  from  the  proper 
officer  to  travel.  If  this  is  not  done,  a  person  so  travelling  may  be  ejected  from 
the  train.* 

A  lunatic,  unknowTi  to  the  servants  of  the  carrier  as  such,  and  carelessly  left 
in  his  seat  alone  by  the  person  having  him  and  his  ticket  in  charge,  may  be  right- 
fully expelled  from  the  train,  although  he  does  not  understand  the  demand  made 
upon  him  for  the  payment  of  his  fare.^ 


1  Shelton  v.  Lake  Shore  etc.  R.  Co., 29  Ohio 
St.  214 ;  Townsend  v.  New  York  etc.  R.  Co.,  56 
N.  Y.  295.  If  a  passenger  has  received  a 
conductor's  check  in  exchange  for  his  ticket, 
and  gets  upon  another  train  by  the  direction 
of  the  company's  servant,  and  on  the  assur- 
ance of  the  conductor  that  such  check  will 
be  received  upon  the  other  train,  the  com- 
pany will  be  responsible  for  the  act  of  the 
conductor  in  refusing  to  recognize  such 
check  and  expelling  the  passenger  from  the 
train.  Toledo  etc.  R.  Co.  «;.'McDonough,  53 
Ind.  289. 

2  Jerome  v.  Smith,  48  Vt.  230.  See  also 
O'Brien  v.  Boston  etc.  R.  Co.,  ante,  p.  22. 
If  there  is  no  special  contract  to  vary  the 
terms  of  a  railroad  ticket,  it  must  be  used 
as  those  terms  direct, —  e.g'.,  a  ticket  with  the 
words  "  Portland  to  Boston  "  imprinted  on 
it,  purchased  in  Portland,  does  not  entitle 
the  holder  to  a  passage  in  a  direction  the 
reverse  of  that  indicated  on  the  ticket. 
Keeley  v.  Boston  etc.  R.  Co.,G7  Me.  163;  s.  c. 
6  Cent.  L.  J.  382;  17  Alb.  L.  J.  366;  Coleman 
V.  New  York  etc.  R.  Co.,  106  Mass.  160. 
Where  an  additional  and  more  circuitous 
route  exists  between  two  points  on  the 
main  line  of  a  railroad,  a  passenger  liokiing 
a  through  ticket  cannot,  as  a  matter  of  right, 
leave  the  train  on  the  main  line  at  one  of 
these  points  and  demand  transportation  to 


the  other  point  over  the  circuitous  route 
without  paying  additional  fare.  The  com- 
pany is  bound  only  to  carry  the  passenger 
over  the  through  and  most  direct  route. 
Especially  is  this  so,  when  the  rate  per  mile 
to  be  charged  for  tickets  is  fixed  by  statute, 
and  the  price  of  the  ticket,  as  in  this  case, 
was  for  the  number  of  miles  travel  on  the 
most  direct  line  between  the  two  points. 
Bennett  v.  New  York  etc.  R.  Co.,  69  N.  Y. 
594;  s.  c.  5  Hun,  599.  See  also  Adwin  v.  New 
York  etc.  R.  Co.,  60  Barb.  590. 

3  Weaver  v.  Rome  etc.  R.  Co.,  3  Thomp.  & 
0.  470. 

■•  Goetz  V.  Hannibal  etc.  R.  Co.,  50  Mo.  472. 

6  Willetts  V.  Buffalo  etc.  R.  Co.,  14  Barb. 
585.  In  Jennings  v.  Great  Northern  R.  Co., 
L.  R.  1  Q.  B.  7,  the  plaintiff  took  tickets 
for  himself,  his  servants,  and  horses  by  a 
particular  train  on  the  defendants'  railway. 
The  train  was  afterwards  divided  into  two. 
The  plaintiff  travelled  in  the  first  part  of  the 
train,  taking  all  the  tickets  with  him.  When 
the  second  train,  with  the  ,-ervants  and 
horses,  was  about  to  start,  the  plaintiff's 
servants  were  required  to  produce  their 
tickets,  and  on  their  being  unable  to  do  eo, 
the  defendants  refused  to  cany  tliem.  A 
by-law  of  the  defendants  provided  that  "No 
passenger  will  be  allowed  to  enter  any  car- 
riage without  having  first  paid  his  fare  and 


340 


REGULATIONS    OF    THE    CAKKIER. 


Notes. 


§  4.  Refusal  to  pay  Fare.  —  A  wilful  refusal  to  pay  the  proper  fare  demand- 
able  justities  expulsion  from  the  train.  The  railroad  company  is  under  no 
obligation  to  transport  a  trespasser,  and  he  may  be  expelled  at  any  time,  pro- 
vided the  manner  and  place  of  expulsion  are  such  that  the  act  will  not  result 
in  wanton  injury.^  It  is  important  to  observe  the  distinction  between  passen- 
gers who  may  honestly  differ  with  the  company's  agents  in  regard  to  their  rights, 
and  therefore  refuse  to  submit  to  exactions  of  fare  in  addition  to  that  already 
paid,  and  persons  who  board  the  train,  or  remain  upon  it  after  their  ticket  is 
exhausted,  with  the  intention  of  defrauding  the  company  or  resisting  demands 
for  payment  of  fare.  It  would  seem  that  trespassers  are  not  *'  passengers  " 
contemplated  by  statutes  which  forbid  the  expulsion  of  passengers  at  other  than 
regular  stations.'^    But  this  distinction  is  not  always  observed.^ 

After  a  person  has  refused  to  pay  his  fare,  and  is  being  put  off  the  train,  he 
acquires  no  right  to  passage  by  then  tendering  the  fare  demanded.*  In  such  a 
case,  if  put  off  at  a  regular  station,  he  must  there  obtain  a  ticket  and  tender  his 
fare.* 

Where  the  rates  of  fare  fixed  by  the  company  were  higher  than  allowed  by 
law,  and  the  plaintiff  entered  the  cars  and  tendered  the  legal  fare  for  the  pur- 
pose, as  he  afterwards  declared,  of  making  money  by  suit  against  the  company 
for  expulsion  in  consequence  of  refusal  to  pay  the  rate  fixed  by  the  company, 
having  been  so  expelled,  it  was  held  that  he  was  entitled  only  to  compensatory 


obtained  a  ticket.  Each  passenger,  on  pay- 
ment of  his  fare,  will  be  furnished  with  a 
ticket,  which  such  passenger  is  to  show 
when  required,  and  to  deliver  up  before 
leaving  the  company's  premises,  upon  de- 
mand." It  was  held,  in  an  action  by  the 
plaintiff  for  not  cariying  his  servants,  that 
as  the  defendants  contracted  with  the 
plaintiff,  and  delivered  the  tickets  to  him, 
and  not  to  the  servants,  they  were  not  in  a 
position  to  enforce  the  by-law. 

1  Great  Western  R.  Co.  v.  Miller,  19  Mich. 
305;  Haley  v.  Chicago  etc.  R.  Co.,  21  Iowa, 
15;  Chicago  etc.  R.  Co.  v.  Boger,  1  Bradw. 
472;  Lillis  v.  St.  Louis  etc.  R.  Co.,  &4  Mo.  46-t; 
Ohio  etc.  R.  Co.  v.  Muhling,  30  111.  9;  O'Brien 
V.  Boston  etc.  E.  Co.,  15  Gray,  20;  s.  c.  ante, 
p.  22. 

*  Lillis  V.  St.  Louis  etc.  R.  Co.,  and  Chi- 
cago etc.  R.  Co.  V.  Boger,  supra;  The  People 
V.  JUlson,  3  Park.  Cr.  Cas.  2:J4. 

*  Chicago  etc.  R.  Co.  v.  Peacock,  48  lU. 
253;  Fulton  v.  Grand  Trunk  R.  Co.,  17  Upper 
Canada  Q.  B.  428. 

*  The  People  v.  Jillson,  3  Park.  Cr.  Cas. 
2:54:  O'Brien  v.  Boston  etc.  R.  Co.,  ante,  p. 
22;  The  State  v.  Campbell,  32  N.  J.  L.  309; 
Nelson  v.  Long  Island  etc.  R.  Co.,  7  Hun, 
140;  Stone  v.  Chicago  etc.  R.  Co.,  47  Iowa, 
82;  ».  c.  10  Ch.  Leg.  N.  73;  6  Reporter,  489; 
Hoffbauer  v.  D.  &N.  R.  Co.,  20  Alb.  L.  J.  474; 
Fulton   V.  Grand  Trunk  R.  Co.,  17  Upper 


Canada  Q.  B.  428;  Hibbard  v.  New  York  etc. 
R.  Co.,  15  N.  Y.  455,  462,  per  Denio,  C.  J. 

5  Nelson  v.  Long  Island  R.  Co.,  supra.  In 
The  State  v.  Campbell,  supra,  the  passenger 
had  in  his  possession  a  spent  ticket  and  a 
regular  ticket.  He  insisted  on  the  right  of 
passage  on  the  spent  ticket,  and  exhibited 
no  other.  Having  been  ejected  from  the 
train  after  considerable  delay  and  diffi- 
culty, he  produced  the  regular  ticket,  and 
demanded  that  he  be  carried  upon  it,  which 
demand  was  refused.  The  court  held  that 
his  tortious  refusal  to  produce  this  ticket 
before  his  expulsion  was  a  breach  of  the 
contract,  saying:  "A  passenger  takes  his 
ticket  subject  to  the  reasonable  regulations 
of  the  company;  it  is  an  implied  condition 
in  his  contract  that  he  will  submit  to  such 
regulations;  and  if  he  wilfully  refuses  to  be 
bound  by  them,  by  so  doing  he  repudiates 
his  contract,  and  after  such  repudiation  can- 
not claim  any  right  under  it."  It  was  re- 
solved in  Stone  v.  Chicago  etc.  R.  Co.,  supra, 
that  where  a  passenger  has  been  ejected 
from  a  train  for  non-payment  of  fare,  he 
must  pay  the  fare  from  the  station  where  he 
first  entered  the  train,  before  he  can  insist 
on  being  carried  forward  upon  the  same 
train ;  and  if  he  purchase  a  ticket  at  the 
point  where  he  was  ejected,  the  conductor 
may  nevertheless  exclude  him  from  the 
train. 


PAYMENT    OF    FARE.  341 


Discrimination  in  Price  of  Ticliets. 


damages,  and  for  tlie  purpose  of  mitigating  the  damages  his  subsequent  declar- 
ations as  to  his  object  in  entering  the  train  were  admissible  in  evidence. '  When 
upon  a  steamboat  no  collection  of  fares  is  made  until  the  landing  is  reached,  a 
person  attempting  to  leave  the  boat  without  producing  a  ticket  may  be  detained 
a  reasonable  length  of  time,  in  order  that  the  officers  of  the  boat  may  investi- 
gate statements  explanatory  of  his  failure  to  produce  the  ticket.^ 

§  5.  Discrimination  in  Price  of  Tickets  purchased  at  the  Company's  OflBce 
and  Fare  paid  on  the  Train,  —  In  some  cases,  the  right  of  the  railroad  company 
to  charge  an  extra  price  for  carriage  of  those  passengers  who  pay  their  fare 
upon  the  train  is  guaranteed  by  statute.^  In  general,  it  is  held  that  a  regulation 
of  this  kind,  in  the  absence  of  any  statute  controlling  the  matter,  is  reasonable.* 
The  Supreme  Court  of  Maine,  speaking  of  such  a  regulation,  say:  "It  is 
important  to  promote  and  secure  safety  by  allowiug  time  to  the  conductor  to 
attend  to  his  proper  duties  on  the  train,  and  which  would  be  often  seriously 
interfered  with  if  his  time  was  taken  up  in  collecting  fares,  exchanging  money, 
and  answering  questions.  It  is  highly  important  as  a  check  against  mistakes 
or  fraud  on  the  part  of  the  conductors,  and  as  a  guard  against  imposition  by 
those  seeking  a  passage  from  one  station  to  another  without  payment."^ 

But  if  a  railroad  company  chooses  to  make  a  regulation  of  this  character,  a 
corresponding  duty  would  seem  to  devolve  upon  it  of  providing  those  seeking 
passage  with  all  the  conveniences  necessary  for  the  purchase  of  tickets.®  "To 
justify  this  discrimination,  every  reasonable  and  proper  facility  must  be  afforded 
the  passenger  to  procure  his  ticket.  They  must  furnish  a  convenient  and  acces- 
sible place  for  the  sale  of  the  tickets,  with  a  competent  person  in  attendance 
ready  to  sell  them,  which  should  be  open  and  accessible  to  all  passengers  for  a 
reasonable  time  before  the  departure  of  each  train  and  up  to  the  time  of  its 
actual  departure,  so  that  it  shall  really  be  a  case  of  neglect,  and  not  of  necessity, 
on  the  part  of  the  passenger,  and  not  the  fault  of  the  company.  If  a  company 
will  keep  its  ticket-office  closed  till  a  crowd  of  clamorous  passeugers  have 
gathered  around,  so  as  to  mate  it  dangerous  or  inconvenient  for  females  or 
infirm  persons  to  get  tickets,  surely  the  fault  is  not  theirs,  but  the  company's, 
if  they  do  not  procui-e  the  tickets ;  and,  under  such  circumstances,  to  charge 
them  more  than  the  price  established  for  tickets  would  be  but  an  imposition  and 
an  outrage  which  the  law  cannot  sanction."'    In  a  later  case,  this  same  court 

1  Cincinnati  etc.  R.  Co.  v.  Cole, 29  Ohio  St.  etc.-R.Co.,  15  Minn.  49;  Indianapolis  etc.  R. 
126.  Co.  V.  Rinard,  46  Ind.  293;  Jefltersonville  etc. 

2  Standish  v.  Narragansett  Steamboat  Co.,  R.  Co.  v.  Rogers,  38  Ind.  116;  s.  c.  28Ind.  1; 
111  Mass.  512.  Hilliard  v.  Goold,  34  N.  II.  230;  The  People 

3  Laws  N.  Y.  1857,  p.  488,  Chap.  228;  Code  v.  Jillson,  3  Park.  Cr.  Cas.  234. 

Ala.  1876,  §  1698;  Laws  Iowa  1874,  p.  61,  §  2;  «  The  State  v.  Goold, 53  Me.  279,  281. 

Rev.  N.  J.  1877,  p.  944,  §  164;  Nellis  v.  New  »  Chicago  etc.  R.  Co.  v.  Parks,  ante,  p.  319; 

York  etc.  R.  Co.,  SON.  Y.  505.  St.  Louis  etc.  R.  Co.  v.  Dalby,  19  111.  352; 

*  Chicago  etc.  R.  Co.  v.  Parks,  ante,  p.  319;  Chicago  etc.  R.  Co.  v.  Flagg,  43  111.  364;  I)u 

St.  Louis  etc.  R.  Co.  V.  Dalby,  19  111.  .353;  Laurans  w.  St.  Paul  etc.  R.  Co.,  15  Minn.  40; 

Stephen  v.  Smith,  29  Vt.  160;  St.  Louis  etc.  Jcffersonville  etc.  R.  Co.  v.  Rogers,  38  Ind. 

R.  Co.  V.  SouHi,  43  111.  176;  Crocker  v.  New  IK!;  s  r.  28  Ind.  1;  Indianapolis  etc.  R.  Co. 

London  etc.  R.  Co.,  24  Conn.  249;  Porter  v.  v.  Rinard,  46  Ind.  293. 

New  York  etc.  R.  Co. ,.34  Barb.  353  ;  Bordeaux  '  Per  Cnton,  J.,  in  Chicago  etc.  R.  Co.  v, 

V.Erie    R.    Co.,    8  Hun,  579;  The  State  v.  Parks,  18  111.  460,  465 ;  s.  c.  a/t<e,  p.  319. 
C'hovin,  7  Iowa,  204;  Du  Laurans  v.  St.  Paul 


342  REGULATIONS    OF    THE    CARRIER. 


Notes. 


saw  fit  to  explain  its  former  opinion  in  one  particular,  namely,  that  the  court,  in 
speaking  of  the  time  of  the  actual  departure  of  a  train,  up  to  which  the  ticket- 
office  must  be  kept  open,  must  be  understood  as  referring  to  the  published  fixed 
time  which  everj'body  knew.  If  a  person  saw  fit  to  apply  at  the  ticket-office 
after  the  published  time  for  the  departure  of  a  train,  he  could  not  demand  the 
same  rights  and  privileges  as  those  who  came  at  the  proper  time  for  their  tickets. 
Any  other  rule  would  oblige  the  railroad  company,  in  case  its  trains  were  delayed, 
to  keep  a  person  stationed  in  its  office  until  the  train  delayed  might  arrive.' 

Elsewhere  it  is  held  that  as  a  railroad  company  is  under  no  obligation  to  estab- 
lish offices  for  the  sale  of  its  tickets,^  and  as  a  company  may  establish  one  rate  of 
fare  when  paid  upon  its  trains  and  another  when  paid  at  its  offices,  it  follows 
that  when  the  office  of  the  company  is  closed,  the  rate  upon  the  train  is  the  only 
one  in  existence.^ 

It  is  provided  by  statute  in  New  York,  that  "  any  railroad  company  which  shall 
ask  and  receive  a  greater  rate  of  fare  than  that  allowed  by  law  shall  forfeit  f  50, 
which  sum  may  be  recovered,  together  with  the  excess  so  received,  by  the  party 
paying  the  same,"  etc.*  By  a  statute  passed  the  same  year,  it  is  provided  that 
the  New  York  Central  Eailroad  Company,  "  at  every  station  on  its  road  where  a 
ticket-office  is  now  or  may  hereafter  be  established,  shall  keep  the  same  open  for 
the  sale  of  tickets  at  least  one  hour  prior  to  the  departure  of  each  passenger- 
train  from  such  station."^  The  right  to  charge  persons  paying  their  fare  upon 
the  train  five  cents  extra  is  also  guaranteed  by  this  statute.^  In  a  case  arising 
under  these  provisions,  the  facts  were  that  the  plaintiff  was  in  the  neighborhood 
of  the  ticket-office  and  had  ample  opportunity  to  procure  his  ticket  before  the 
arrival  of  the  train.  He  waited,  however,  until  he  heard  the  whistle  of  the 
engine  of  the  approaching  train,  and  then  went  to  the  office  to  procure  his 
ticket.  The  ticket-agent  was  absent,  but  came  in  from  the  train,  without  the 
key  to  the  ticket-drawer,  which  had  been  taken  off  by  a  person  iu  charge  of 
the  office  on  the  approach  of  the  train.  The  train  was  behind  time,  but  the 
office  had  been  kept  open  up  to  the  published  time  of  the  departure  of  the  train. 
The  passenger  having  been  compelled  to  pay  the  five  cents  extra,  the  usual  fare, 
brought  an  action  for  the  statutory  penalty.  The  court  held  that  the  company 
was  required  to  keep  its  ticket-office  open  until  the  actual  departure  of  the 
train ;  and  if  they  closed  it  prior  to  that  time,  passengers  afterwards  applying 
for  tickets  could  not  be  charged  the  additional  fare ;  furthermore,  that  if  the 
company  have  nobody  at  the  office  to  furnish  a  ticket,  it  is  not  open  within  the 
meaning  of  the  statute.' 

1  St.  Louis  etc.  R.  Co.  v.  South,  43  111.  176.  peals  in  an  earlier  case:  "  To  compel  a  pas- 
But  see  Porter  v.  New  York  etc.  R.  Co.,  34  senger  to  pay  a  penalty  because  tlie  com- 
Barb.  353.  pany  had  deprived    him  of   the    power  to 

2  Nellis  V.  New  York  etc.  R.  Co.,  30  N.  Y.  travel  for  the  regular  fare,  would  be  so  op- 
•''05.  pressive  and  unjust  that  it  would  require  a 

3  Crocker  v.  New  London  etc.  R.  Co.,  34  positive  provision  of  a  legislative  act  to  in- 
Conn.  249.  But  it  is  gratifying  to  observe  duce  any  tribunal  to  sanction  it."  Nellis  v. 
that  this  decision  was  by  a  divided  court,  and  New  York  etc.  R.  Co.,  30  N.  Y.  505,  510.  See 
has  not  been  generally  assented  to.  DuLaur-  also  Illinois  etc.  R.  Co.  v.  Sutton,  42  111.438. 
ana  v.  St.  Paul  etc.  R.  Co.,  15  Minn.  49.    It  *  LawsN.  Y.  1857,  p.  432,  chap.  1S5. 

has,  however,  received  sanction  in  a  late  ^  j(i__  ^gs,  chap.  228,  §  1. 

case  of  tlie  Supreme  Court  of  New  York.  «  Id.  §  2. 

r,ordeaux  v.  Erie   K.  Co.,  8  Hun,  579.    But  ■  Porter  v.  New.York  etc.  R.  Co.,  34  Barb. 

contra  is  the  language  of  the  Court  of  Ap-  353. 


PAYMENT    OF    FARE.  343 


Transportation  upon  Freight-trains. 


By  the  same  statute  it  is  provided  that  the  New  York  Central  Railroad  Com- 
pany shall  not  be  required  to  keep  their  ticket-offices  open,  except  at  Utica  and 
six  other  places,  between  the  hours  of  nine  o'clock  p.  m.  and  five  o'clock  a.  m. 
A  passenger  applied  at  the  Utica  office  at  about  one  o'clock  a.  m.,  and  found  it 
closed,  and  thereupon  took  his  seat  in  the  cars.  The  extra  five  cents  was  de- 
manded and  paid.  In  an  action  for  this  excess  and  the  statutory  penalty,  the 
court  held  that  the  extra  fare  could  only  be  demanded  when  the  passenger 
failed  to  purchase  his  ticket  at  an  established  office  which  was  open.'  A.person 
who  has  properly  applied  for  a  ticket,  and  is  unable  to  procure  one  from  any  cause 
attributable  to  the  company  or  its  agents,  is  entitled  to  be  carried  at  the  ticket 
rate.  He  has  the  choice  of  paying  the  excess  demanded  of  him  or  of  insisting 
upon  his  right  to  be  thus  carried,  and  of  holding  the  company  responsible  in 
damages  for  the  refusal  to  carry  him.' 

§  6.  Transportation  of  Passengers  upon  Freight-trains. —  (1.)  In  general. — 
It  is  the  undoubted  right  of  railway  companies  to  appropriate  a  portion  of  their 
trains  exclusively  to  the  carrying  of  freight,  and  to  entirely  exclude  passengers 
therefrom.  Their  obligations  to  the  public  only  require  them  to  furnish  suffi- 
cient passenger-trains  to  accommodate  the  travel,  and  such  freight-trains  as  the 
business  of  the  country  along  their  line  requires.  They  are  not  required  to 
carry  passengers  upon  their  freight- trains,  or  freight  on  their  passenger- trains. 
But  they  may,  if  they  choose,  do  either. ^  When,  therefore,  a  railroad  company 
regularly  carries  passengers  upon  its  freight-trains,  and  holds  itself  out  to  the 
public  as  ready  to  do  so,  it  thereby  becomes  a  common  carrier  of  passengers  by 
such  freight-trains,  and  the  right  of  a  passenger  to  passage  thereon,  subject  to 
reasonable  regulations,  is  as  assured  as  upon  the  regular  passenger-trains.* 

A  very  common  regulation  is  that  passengers,  before  going  on  board  freight- 
trains,  shall  procure  their  tickets  at  the  company's  office,  and  on  failure  to  do  so 
shall  be  expelled  from  the  train.  The  reasonableness  of  a  regulation  of  this 
kind  is  not  denied.^  But  in  order  that  the  company  may  be  in  a  position  to 
enforce  such  a  regulation,  it  is  necessary  that  proper  facilities  should  be  pro- 
vided for  passengers  to  obtain  their  tickets,  and  that  the  ticket-office  of  the 
company  be  open  for  a  reasonable  time  previous  to  the  departure  of  the  train. ^ 

'  NeUis  V.  New  York  etc.  R.  Co.,  30  N.  Y.  111.  312;  Toledo  etc.  R.  Co.  v.  Patterson,  63 

-505.  111.  304;  Illinois  etc.  R.  Co.  v.  Sutton,  42  111. 

2  Jeflfersonville  etc.  R.  Co.  v.  Rogers,  38  438;  Illinois  etc.  R.  Co.  v.  Nelson,  59  111.  110; 
Ind.  116.  Law  v.  Illinois  etc.  R.  Co.,  32  Iowa,  534;  In- 

3  Chicago  etc.  R.  Co.  v.  Randolph,  53  III.  dianapolis  etc.  R.  Co.  v.  Rftiard,  46  Ind. 
610;  Railway  Co.  v.  Moore,  49  Texas,  31.  293.    It  is  also  a  reasonable  regulation  that 

*  Chicago  etc.  R.  Co.  v.  Flagg,  43  111.  304;  only   such  passengers   shall    be   permitted 

Hazard  v.  Chicago  etc.  R.  Co.,  1  Biss.  503;  to  ride  upon  freight- trains  as  are  provided 

Mobile    etc.  R.  Co.  v.  McArthur,  43   Miss.  with   tickets  of  a  particular  description,— 

180.  for  example:    a  round -trip  ticket,  a  thou- 

^  Chicago    etc.  R.  Co.    v.    Flagg,  supra;  sand- mile  ticket,  or  a  pass.     Faulkner  v. 

Cleveland  etc.  R.  Co.  v.  Bartratn,  11  Ohio  Ohio  etc.  R.  Co.,  55  Ind.  369. 

St.  4.57 ;  St.  Louis  etc.  R.  Co.  v.  Myrtle,  51  Ind.  «  St.  Louis  etc.  R.  Co.  v.  Myrtle,  51  Ind. 

666;  Lake  Shore  etc.  R.  Co.  v.  Greenwood,  79  566;  Evans  v.  Memphis  etc.  R.  Co.,  56  Ala. 

Pa.  St.  373;  Evans  v.  Memphis  etc.  R.  Co.,  .W  246;  Chicago  etc.  R.  Co.  v.  FIngg,  43  111.  364; 

Ala.  246;  Kansas  etc.   R.   Co.  v.  Kessler,  18  Illinois  etc.  R.  Co.  v.  Johnson,  67  1)1.  312; 

Kau.  523;  Illinois  etc.  R.  Co.  v.  Johnson,  67  Illinois  etc.  R.  Co.  v.  Sutton,  42  111.  438. 


344  REGULATIONS    OF    THE    CARRIER. 


Notes. 


If  it  has  been  customary  to  receive  passengers  upon  freight-trains  without 
requiring  them  previously  to  procure  tickets  at  the  company's  ofHce,  a  person 
who  has  travelled  upon  these  trains  before  the  adoption  of  such  a  regulation,  and 
indeed  afterwards,  without  objection  by  the  company's  servants  for  want  of  a 
ticket,  cannot  be  put  off  the  tra,in  without  proof  of  express  notice  to  him  of  the 
regulation  requiring  tickets  to  be  purchased  before  entering  the  train.  The  post- 
ing of  the  new  regulation  in  the  station-houses  of  the  company,  in  such  a  case,  is 
not  notice  sufficiently  express. ^ 

If  the  railroad  company,  after  having  carried  passengers  upon  its  freight-cars, 
sees  fit  to  adopt  a  regulation  excluding  them  altogether,  it  will  be  responsible  in 
punitory  damages  to  a  passenger  who,  having  purchased  a  ticket  of  one  of  its 
station-agents,  with  the  assurance  that  such  ticket  entitled  him  to  passage  upon 
the  company's  freight-trains,  is  afterwards  expelled  from  one  of  these  trains  by 
the  conductor  in  consequence  of  such  i-egulation.^ 

(2.)  WIio  are  to  be  regarded  as  Passengers.  —  When,  by  the  regulations  of  the 
company,  passengers  are  forbidden  to  ride  upon  freight-tmins,  and  a  person 
nevertheless  does  so  with  the  knowledge  of  the  conductor  of  the  train,  it  is 
sometimes  a  question  as  to  what  are  the  riglits  of  this  person  under  these 
circumstances.  In  Eaton  v.  Delaware,  etc.  Bailroad  Company,^  the  facts  were 
that  the  plaintiff  was  invited  by  the  conductor  of  a  coal-train  to  ride  upon  his 
train  to  a  certain  point,  with  a  promise  to  get  him  employment  as  a  brakeman. 
While  making  this  journey,  the  caboose  in  which  the  plaintiff  was  seated  was 
run  into  and  demolished  by  a  following  train,  on  account  of  the  negligence  of  the 
conductor  of  the  coal-train.  In  an  action  for  injuries  received  by  this  accident, 
it  appeared  that  there  was  a  printed  regulation  of  the  defendants  for  the  use  of 
their  employees,  by  which  passengers  were  forbidden  to  ride  upon  coal-trains, 
but  of  this  the  plaintiff  had  no  actual  knowledge.  It  did  not  appear  that  passen- 
gers were  habitually  or  occasionally  permitted  to  ride  in  the  caboose.  The  court 
held  that,  as  the  conductor  of  the  coal-train  acted  wholly  without  authority  in 
the  premises,  and  in  violation  of  express  instructions,  there  was  nothing  in  the 
foregoing  circumstances  which  would  imply  the  existence  of  the  relation  of 
carrier  and  passenger  between  the  plaintiff  and  the  defendant;  that,  as  the 
plaintiff  was  on  the  train  without  authority,  he  was  there  unlawfully,  and  could 
not  recover  for  the  injm-ies  received. 

The  foregoing  decision  is  strictly  in  accord  with  the  circumscribed  views  of 
the  courts  of  the  State  of  New  York  in  regard  to  the  scope  of  a  servant's 
authority,  and  the  immunity  of  the  master  from  liability  for  the  results  of  acts 
for  the  doing  of  which  the  servant  was  not  hired.*  But  as  courts  in  general  are 
not  disposed  to  thus  limit  the  responsibility  of  the  master  for  the  acts  of  his 
servant,  it  will  not  be  surprising  to  find  that  a  contrary  opinion  is  entertained 
upon  this  question.  Thus,  the  Supreme  Judicial  Court  of-  Maine,  in  Dunn  v. 
Grand  Trunk  Bailroad  Company,^  have  held  that  a  person  who  enters  the 
"saloon-car"  [caboose?]  of  a  freight-train,  and  after  the  train  has  started 
remains  there,  without  being  requested  or  dii-ected  to  leave  by  the  conductor, 

>  Lake  Shore  etc.  K.  Co.  v.  Greenwood,  79  >  57  N.  Y.  382. 

Pa.  St.  373.  4  Isaacs  v.  Third  Avenue  R.  Co.,  47  N.  Y. 

-  Kansas  Pacific  R.  Co.  v.  Kessler,  18  Kan.  122 ;  Parker  v.  Erie  R.  Co.,  5  Hun,  57 
523.  3  58  Me.  187,  ante,  p.  328. 


TRANSPORTATION    UPON    FREIGHT-TRAINS.  345' 


Classification  of  Passengers. 


who  receives  from  him  the  usual  fare  of  a  first-class  passenger,  such  person  is 
to  be  regarded  as  a  passenger,  and  the  corporation  incurs  the  same  liability  for 
his  safe  transportation  as  if  he  were  in  the  regular  passenger-coaches  at  the 
time  of  the  injury,  although  the  regulations  of  the  defendant  prohibited  the 
carrying  of  passengers  upon  freight-trains.  The  court  said :  "  The  regulations  of 
the  defendant  corporation  are  binding  on  its  servants.  Passengers  are  not 
presumed  to  know  them.  Their  knowledge  must  be  aflSrmatively  proved.  If 
the  servants  of  the  corporation,  who  are  bound  to  know  its  regulations,  neglect 
or  violate  them,  the  principal  should  bear  the  loss  or  injury  arising  from  such 
neglect  or  violation,  rather  than  strangers.  The  corporation  selects  and  appoints 
its  servants,  and  it  should  be  responsible  for  their  conduct  while  in  its  employ.'" 
To  the  same  effect  is  the  decision  of  the  Supreme  Court  of  Pennsylvania  in  the 
late  case  of  Creed  v.  Pennsylvania  Railroad  Company.'^  These  last  two  cases 
would  seem  to  express  the  better  view  of  this  question,  and  they  have  the  sup- 
port of  authority  in  analogous  cases.^ 

When  the  evidence  shows  the  existence  of  a  rule  excluding  passengers  from 
freight-trains,  and  that  the  conductor  had  no  authority  to  relax  the  rule,  and 
that  the  person  injured  while  riding  upon  such  a  train  was  acquainted  with  the 
regulations  of  the  company  in  this  particular,  it  is  obvious  that  it  cannot  be 
presumed  that  the  company  contracted  to  carry  such  injured  person  as  a  passen- 
ger; and  no  action  can  be  maintained  for  the  injury  resulting  in  his  death, 
caused  Sy  the  wreck  of  the  freight-train.* 

§  7.  Classiflcation  of  Passengers.  —  (1 .)  According  to  Sex.  —  It  is  a  recognized 
rule  that  a  carrier  cannot  capriciously  discriminate  between  passengers  on 
account  of  their  nativity,  color,  race,  social  position,  or  their  political  or 
religious  beliefs.  Classifications  and  discriminations  may  be  made  for  the 
general  convenience  and  security  of  the  passengers,  but  such  distinctions  must 
be  on  some  principle  or  for  some  reason  which  the  law  recognizes  as  just  and 
equitable,  and  founded  in  sound  public  policy.  The  reservation  of  a  car  for  the 
accommodation  of  ladies,  and  gentlemen  in  company  wjth  ladies,  is  a  measure 
the  reasonableness  of  which  has  always  been  conceded.^  The  company  have  a 
right  to  enforce  obedience  to  such  a  regulation,  and,  after  notice  to  a  passenger 
attempting  to  enter  the  "  ladies'  car,"  may  exclude  him  with  force  if  necessary, 
but,  of  course,  using  no  greater  amount  than  adequate  to  the  circumstances  of 
the  case.* 

If  there  be  no  sitting  room  for  passengers  excluded  by  the  regulation  from  the 

'  58  Me.  192.  ♦  Houston  etc.  R.  Co.  v.  Moore,  49  Texas, 

2  86  Pa.  St.  139.    See  also  Lawrenceburgh       31. 

etc.  R.  Co.  V.  Montgomery,  7  Ind.  474;  Lucas  s  Chicago  etc.  R.  Co.  v.  Williams,  55  111. 

V.  Milwaukee  etc.  R.  Co.,  .33  Wis.  41.  185;  Bass  v.  Chicago  etc.  R.  Co.,  36  Wis.  4.50; 

3  Lackawanna  etc.  R.  Co.  i;.  Chenewlth,  s.  c.  39  Wis.  636;  42  Wis.  654,  ante,  p.  311; 
52  Pa.  St.  382;  Wilton  v.  Middlesex  R.  Co.,  Peck  v.  New  York  etc.  R.  Co.,  70  N.  Y.  587. 
107  Mass.  108;  8.  c.  125  Mass.  130;  O'Donnell  See  also  The  State  v.  Overton,  24  N.  J.  L. 
V.  Allegheny  R.  Co.,  59  Pa.  St.  249;  Washburn  4.35, 441 ;  Pittsburgh  etc.  R.  Co.  v.  Hinds,  5* 
V.  Nashville  etc.  R.  Co.,  3  Head,  G.38;  East  Pa.  St.  572,  ante,  p.  295. 

Saginaw  City  R.  Co.  v.  Bohn,  27  Mich.  503;  "  Peck  v.  New  York   etc.  R.  Co.,  supra; 

Pittsburgh  etc.  R.  Co.  v.  Caldwell,  74  Pa.  St.  Bass  v.  Chicago  etc.  R.  Co.,  supra;  McKinley 
421.  V.  Chicago  etc.  R.  Co.,  44  Iowa,  314. 


346  REGULATIONS    OF    THE    CARRIER. 


Notes. 


ladies'  car,  but  room  to  seat  them  there,  they  cauuot  be  left  standing  without  a 
breach  of  the  contract  of  carriage.  But,  in  such  case,  it  rests  in  the  discretion 
of  the  proper  officials  of  the  train  to  select  those  to  be  admitted.  Passengers 
aggrieved  by  the  exercise  of  such  discretion,  have  their  remedy  in  an  action  for 
breach  of  the  contract  of  carriage. ^  A  railway  company  will  be  responsible  for 
the  forcible  exclusion  of  a  colored  woman  from  the  ladies'  car  by  their  servant, 
although  the  managing  officers  of  the  train  have  never  given  any  orders  to 
this  effect,  and  the  act  of  the  servant  in  so  doing  was  from  mere  caprice  or 
wantonness.^ 

(2.)  According  to  Color.  —  If  a  classification  is  to  be  made  upon  this  basis,  it 
must  be  founded  upon  something  more  substantial  than  mere  prejudice.  This 
regulation  must  be  reasonable,  like  all  other  regulations  of  the  carrier.^  In  the 
absence  of  a  statute  controlling  this  matter,  it  has  been  held  that  a  rule  of  a 
railroad  company  requiring  colored  persons  to  sit  at  one  end  of  a  car,  separate 
from  the  other  passengers,  is  not  an  unreasonable  regulation.*  Agnew,  J.,  who 
delivered  the  opinion  of  the  court  in  this  case,  justified  this  discrimination  as 
ordained  by  Providence  in  the  nature  of  things,  intermarriage  of  the  races  being 
contrary  to  natural  law,  and  the  races  themselves  being  naturally  geographically 
separated.  Moreover,  the  separation  of  passengers  in  this  manner  "prevents 
contacts  and  collisions  arising  from  natural  or  well-known  customary  repug- 
nancies, which  are  likely  to  breed  disturbances  by  a  promiscuous  sitting."  It  is 
obvious  that  the  latter  is  the  true  reason ;  and  the  former,  without  the  existence 
of  the  latter,  would  afford  no  justification  whatever  for  a  regulation  of  this  kind. 
In  an  earlier  case  in  an  inferior  court  in  the  same  State,  it  was  held  that  a  regula- 
tion of  a  street-car  company  confining  negroes  to  the  front  platform  exclusively, 
was  reasonable,  and  justified  expelling  from  the  car  the  plaintiff,  a  colored  man 
who  insisted  upon  having  a  seat  inside  .^ 

In  Hall  v.  De  Cuir,*^  the  Supreme  Court  of  the  United  States  decided  that  a 
statute  of  Louisiana  which  prohibited  common  carriers  of  passengers  from 
making  discriminations  on  account  of  color  was  unconstitutional  and  void  as 
being  a  law  in  restraint  of  commerce ;  and  that,  too,  although  under  the  facts  of 
the  case  at  bar  the  passenger  who  had  been  excluded  from  the  cabin  occupied 
by  white  people  was  travelling  up  the  river  from  New  Orleans  to  a  point  within 
the  State  of  Louisiana.  Waite,  C.  J.,  said:  "The  river  Mississippi  passes 
through  or  along  the  borders  of  ten  different  States,  and  its  tributaries  reach 
many  more.  The  commerce  upon  these  waters  is  immense,  and  its  regulation 
clearly  a  matter  of  national  concern.  If  each  State  was  at  liberty  to  i-egulate 
the  conduct  of  carriers  while  within  its  jurisdiction,  the  confusion  likely  to 
follow  could  not  but  be  productive  of  great  inconvenience  and  unnecessary  hard- 
ship. Each  State  could  provide  for  its  own  passengers  and  regulate  the  trans- 
portation of  its  ovm  freight,  regardless  of  the  interests  of  others.  Nay,  more, 
it  could  prescribe  rules  by  which  the  carrier  must  be  governed  within  the  State 

1  Bass  V.  Chicago  etc.  R.  Co.,  supra.    But  ■*  West  Chester  etc.  R.  Co.  v.  Miles,  55  Pa. 

see  Thorpe  v.  New  York  etc.  R.  Co.,  13  Hun,  St.  209. 

70.  5  Goines  v.  McCaudless,  4  Phila.  255. 

'  Chicago  etc.  R.  Co.  v.  Williams,  55  111.  185.  «  95  U.  S.  485  (reversing  s.  c.  sub  nom.  Dc 

3  Chicago  etc.  R.  Co.  v.  Williams,  55  111.  Cuir  v.  Benson,  27  La.  An.  1). 

185 ;  Day  v.  Owen,  5  Mich.  520,  ante,  p.  30G. 


CLASSIFICATION    OF    PASSENGERS.  347 


According  to  Color. 

ia  respect  to  pasisengers  and  property  brought  from  without.  On  one  side  of 
the  river,  or  its  tributaries,  lie  might  be  required  to  observe  one  set  of  rules,  and 
on  the  other  another.  Commerce  cannot  flourish  in  the  midst  of  such  embar- 
rassments. No  carrier  of  passengers  can  conduct  his  business  with  satisfaction 
to  himself,  or  comfort  to  those  employing  him,  if  on  one  side  of  a  State  line  his 
passengers,  both  white  and  colored,  must  be  permitted  to  occupy  the  same  cabin, 
and  on  the  other  be  kept  separate.  Uniformity  in  the  regulations  by  which  he 
is  to  be  governed  from  one  end  to  the  other  of  his  route  is  a  necessity  in  his 
business,  and  to  secure  it,  Congress,  which  is  untrammelled  by  State  lines,  has 
been  invested  with  the  exclusive  legislative  power  of  determining  what  such 
regulations  shall  be.'" 

The  foregoing  opinion  was  delivered  at  the  October  term,  1877.  It  is  to  be 
noticed  that  the  decision  of  this  case  was  in  no  manner  affected  by  the  Supple- 
mental Civil-Rights  Bill  of  March  1,  1875,  as  the  cause  of  action  accrued  prior 
to  that  date ;  therefore  this  piece  of  congressional  legislation  was  not  discussed 
in  this  case. 

It  is  provided  by  the  first  section  of  the  act  just  mentioned, ^  "  that  all  per- 
sons within  the  jurisdiction  of  the  United  States  shall  be  entitled  to  the  full 
and  equal  enjoyment  of  the  accommodations,  advantages,  facilities,  and  privi- 
leges of  inns,  public  conveyances  on  land  or  water,  theatres,  and  other  places  of 
public  amusement ;  subject  only  to  the  conditions  and  limitations  established 
by  law,  and  applicable  alike  to  citizens  of  every  race  and  color,  regardless  of 
any  previous  condition  of  servitude." 

The  second  section  provides  that  any  person  who  shall  violate  the  preceding 
.section  shall  be  liable  to  a  penalty  of  not  less  than  .$500,  and  also  to  an  indict- 
ment for  a  misdemeanor :  the  penalty  to  be  recovered  by  suit  of  the  party  injured, 
and  the  indictment  also  to  be  prosecuted  in  the  Federal  courts. 

We  are  not  aware  that  this  act  of  Congress  has  been  at  all  discussed  by  the 
court  of  last  resort,  and,  so  far  as  we  can  ascertain,  it  lias  been  but  seldom 
passed  upon  by  the  Federal  judges  of  the  lower  courts.  Giles,  J.,  of  the 
United  States  District  Court  for  the  District  of  Maryland,  in  a  charge  to  a  jury,^'' 
assailed  the  constitutionality  of  the  act,  on  the  principle  of  the  Slait(/hter- House 
Cases*  and  subsequent  cases, ^  so  far  as  it  .sought  to  inflict  penalties  for 
the  violation  of  rights  which,  if  at  all  existing,  belonged  to  the  injured  parties 
as  citizens  of  a  State,  and  not  to  citizens  of  the  United  States  as  such,  and 
therefore  exempt  from  the  control  of  Federal  authority.  Mr.  District  Judge 
Dick,  of  the  same  court  for  the  Western  District  of  North  Carolina,  in  a  charge 
to  a  grand  jury,  took  a  similar  view  of  that  part  of  the  act  relating  to  inn- 
keepers.* Sawvkh,  J.,  of  the  Ninth  Federal  Circuit,  is  reported  to  have  said  of 
this  law,  in  a  case  which  arose  from  the  refusal  of  a  theatre  manager  to  admit  a 
colored  person  to  his  house:  "Congress  has  no  power  to  make  such  a  law; 
though  the  Legislature  of  any  State  might  perhaps  do  so.'    The  management 

1  95  U.  S.  489.  «  The  Civil-Rights  Bill,  1  Hughes,  ."541 

2  Acts  1874-n5,  p.  335,  chap.  114.  ">  Sec  Donnell  v.  The  State,  48  Miss.  661; 

3  Cully  V.  Baltimore  etc.  H.  Co.,  1  Hughes,  Sauvinet  r.  Wiilker,  27  La.  An.  14;  Peter's 
636.                                           <  16  Wall.  36.  Case, !)  Am.  L.  Hcv.  IW.    But  see  District  v. 

5  United    States    v.   Reese,  !I2  U.   S.  214;        Saville.  9  Am.  L.  Rev.  584. 
United  states  r.  Cruikshaiik,  92  U.  S.  542. 


348  KEGULATIONS    OF    THE    CARRIER. 


Notes. 


of  a  theatre  is  a  private  enterprise;  the  proprietor  conducts  it  for  his  own 
profit :  it  is  his  investment,  and  he  can  lay  down  the  laws  by  which  it  shall  be 
conducted,  and  the  public  has  nothing  to  do  with  it." '  In  a  case  before 
Ekskixe,  J.,  of  the  United  States  District  Court  for  the  District  of  Georgia,  the 
facts  were  that  the  libellaut  applied  for  passage  upon  a  steamboat  and  demanded 
admission  to  the  cabin,  occupied  and  reserved  for  white  passengers,  offering  to 
pay  the  price  charged  for  the  same.  The  price  tendered  was  refused,  and  she 
was  directed  to  go  to  that  portion  of  the  boat  reserved  for  colored  people,  which 
was  substantially  equal  to  the  cabin  occupied  by  white  passengers.  On  her 
persistent  refusal  to  do  so,  she  was  put  off  at  the  next  landing-place  of  the  boat. 
The  court  said:  "Congress  has  not  deemed  it  necessary  or  essential  to  the 
welfare  of  the  colored  citizen  to  enact  any  law  forbidding  interstate  common  car- 
riers by  water  or  laud  from  regulating  the  business  of  their  vessels  or  vehicles 
in  such  manner  that  the  accommodations  for  colored  passengers  on  their  respec- 
tive conveyances  may  be  distinct  and  separate  from  those  assigned  to  white 
passengers.  Yet  colored  passengers  are  entitled  to  accommodations  as  suitable 
as  those  designated  for  the  exclusive  use  of  white  passengers."  ^ 

It  is  apparent  from  the  foregoing  that  the  colored  citizen  may  have  the  "full 
and  equal  enjoyment "  of  the  accommodations  of  the  carrier  although  he  does  not 
mingle  with  white  passengers.  Other  judges  have  intimated  that  this  is  possible. 
"There  is  no  principle  of  law,  human  or  divine,  that  requires  all  men  to  be 
thrown  into  social  hotchpot  in  order  that  their  equality  of  civil  rights  may  be 
secured  and  enforced.  The  Civil-Rights  Bill  neither  imposes  nor  was  intended 
to  impose  any  such  social  obligation.  It  only  proposes  to  provide  for  the 
enforcement  of  legal  rights  guaranteed  to  all  citizens  by  the  laws  of  the  land, 
and  leaves  social  rights  and  privileges  to  be  regulated,  as  they  have  ever  been, 
by  the  customs  and  usages  of  society."  ^ 

In  IF' dl  V.  De  Cm>,*  although  this  act  was  not  under  discussion,  Clifford, 
J.,  expressed  views  which  are  interesting  as  an  exposition  of  general  principles. 
Citing  with  approval  the  decision  of  the  Supreme  Court  of  Michigan  in  a  case 
of  this  kind,^  he  said:  "The  right  to  be  carried  is  one  thing,  and  the  privilege 
of  a  passenger  on  board  as  to  what  part  of  the  vessel  may  be  occupied  by  him, 
is  another  and  a  very  different  thing ;  and  they  add  that  it  is  the  latter,  and  not 
the  former,  which  is  subject  to  reasonable  rules  and  regulations,  and  is,  where 
such  rules  and  regulations  exist,  to  be  determined  by  the  proprietors.®  *  *  * 
Substantial  equality  of  right  is  the  law  of  the  State  and  of  the  United  States ; 
but  equality  does  not  mean  identity,  as,  in  the  nature  of  things,  identity  in  the 
accommodation  afforded  to  passengers,  whether  colored  or  white,  is  impossible 
unless  our  commercial  marine  shall  undergo  an  entire  change.  Adult  male 
passengers  are  never  allowed  a  passage  in  the  ladies'  cabin,  nor  can  all  be 
accommodated,  if  the  company  is  large,  in  the  state-rooms.  Passengers  are 
entitled  to  proper  diet  and  lodging ;  but  the  laws  of  the  United  States  do  not 
require  the  master  of  a  steamer  to  put  persons  in  the  same  apartment  who 
would  be  repulsive  or  disagreeable  to  each  other."  ^     And  further,  he  cited 

1  11  Am.  L.  Rev.  166.  3  Per  Dick,  J.,  The  Civil-Kights  Bill,  1 

«  Green  v.  The  City  of  Bridgeton,  9  Cent.        Hughes,  541,  547.  '•  05  U.  S.  4S5. 

L.  J.  20G,  208.  6  Day  v.  Owen,  ante,  p.  306. 

5  95  U.  S.  501.  '  Id.  503. 


CLASSIFICATION    OF    PASSENGERS.  349 


According  to  Color. 

-with  approbation  the  various  decisions  to  the  effect  that  equality  of  rights  does 
not  involve  the  necessity  of  educating  white  and  colored  persons  in  the  same 
school.  1 

Judicial  authority  is  not  vranting,  however,  in  favor  of  a  contrary  construction 
of  the  language  under  discussion.  Thus,  in  Bailroad  Company  v.  Brown,''  which 
arose  under  a  private  act  of  Congress  passed  in  1863,  granting  certain  privi- 
leges to  a  railroad  corporation,  accompanied  with  the  provision,  however,  that 
"no  person  shall  be  excluded  from  the  cars  on  account  of  color,"  it  was  held 
that  this  language  meant  that  persons  of  color  should  travel  in  the  same  cars 
Avith  white  people,  and  that  the  enactment  was  not  satisfied  by  the  company  pro- 
viding cars  assigned  exclusively  to  people  of  color,  though  they  were  as  good  as 
those  which  they  assigned  exclusively  for  white  persons,  and  in  fact  the  very 
•cars  which  were  at  certain  times  assigned  exclusively  to  white  persons. 
Davis,  J.,  said,  in  regard  to  the  passage  of  this  act:  "It  was  the  discrimina- 
tion in  the  use  of  the  cars  on  account  of  color,  where  slavery  obtained,  which 
was  the  subject  of  discussion  at  the  time,  and  not  the  fact  that  the  colored  race 
could  not  ride  in  the  cars  at  all."^  And  in  Coger  v.  North-Wei>tern  Union 
Packet  Company,*  which  was  an  action  by  a  colored  passenger  for  having  been 
forcibly  excluded  from  the  dinner-table  provided  for  passengers  in  general,  and 
■ordered  to  take  her  meals  upon  the  guards  of  the  boat  or  in  the  pantry,  as  it  was 
•customary  for  colored  passengers,  the  court  held  that  under  the  Fourteenth 
Amendment  and  the  Civil-Rights  Bill  of  1866,  which  guaranteed  to  colored 
persons  the  right  to  make  and  enforce  contracts,  she  had  a  right  to  the  accom- 
modations demanded.^ 

Railroad  corporations  are  expressly  prohibited  by  statute  in  Pennsylvania  ^  from 
this  classification  of  their  passengers ;  any  person  on  account  of  color  or  race 
compelled  to  occupy  any  particular  part  of  theii;-.  cars  may  recover  $500  in  an 
action  of  debt,  as  damages  for  this  grievance.'  Under  this  statute,  Paxson,  J., 
was  of  opinion  that  the  mere  fact  that  the  plaintiff  was  excluded  from  a  certain 
car,  and  directed  to  take  a  seat  in  another  car  equally  comfortable,  in  which 
white  persons  were  seated,  was  of  itself  no  evidence  that  she  was  excluded  on 
account  of  her  color.  "  I  do  not  think,"  said  he,  "  it  was  intended  by  said  act  to 
give  them  superior  privileges,  or  to  so  interfere  with  the  reasonable  police 
arrangement  of  railroad  companies  in  operating  their  road  and  moving  their 
cars  as  to  enable  a  colored  man  to  force  himself  into  a  car  where,  by  reason  of 
*uch  police  regulations,  a  white  man  may  not  enter.    An  ordinary  traveller  takes 

1  The  State  v.  McCann,  21  Ohio  St.  198;  by  white  passengers,  and  the  case  is  not  an 
Boberts  w.  Boston,  5  Gush.  198;  The  State  V.  authority  against  the  contention  that  a 
Dutfy,  7  Nev.  342;  The  People  v.  Easton,  13  classification  of  passengers  may  be  made 
Abb.  Pr.  (N.  S.)  160;  Dallas  v.  Fosdick,  40  Without  violating  the  provisions  of  the  Sup- 
How.  Pr.  249.  See  also  Cory  v.  Carter,  48  plemental  Civil-Rights  Bill  of  1875.  See  this 
Ind.  327.  But  see  Clark  v.  Board  of  Direc-  case  disparagingly  noticed  by  Clifford,  J., 
tors,  24  Iowa,  267.  in  Hall  v.  De  Cuir,  95  U.  S.  485,  507.    Com- 

»  17  Wall.  445.                              »  Id.  452.  pare  Ellis  v.  Nariagansett  Steamship  Co., 

*  37  Iowa,  145.  Ill  Mass.  146. 

6  In  this  case  it  will  be  observed  that  the  •>  Act  of  March  22, 1867,  Pamph.  Laws,  38;  2 

-conveniences  accorded  to  colored  persons  Bright.  Purd.  Dig.  1228,  §  80. 

■were  In  no  respect  equal  to  those  enjoyed  '  Central  R.  Co.  v.  Green,  86  Pa.  St.  427. 


350  REGULATIONS    OF    THE    CARRIER. 


Notes. 


his  seat  in  such  car  as  may  be  pointed  out  to  him  by  those  in  charge  of  the 
train.  In  doing  so,  he  recognizes  the  undoubted  right  of  the  company  to  desig- 
nate the  car  which  he  shall  enter.  He  has  a  right  to  a  seat,  but  not  to  a  seat  in 
any  particular  car."  ^ 

§  8.  Exclusion  of  "Runners"  from  Carrier's  Vehicles  and  Premises.  —  The 
well-established  right  of  carriers  to  make  reasonable  regulations  for  the  conduct 
of  passengers  and  others  transacting  business  upon  their  premises,  is  accom- 
panied by  the  right  to  exclude  from  their  premises  persons  having  no  business 
with  the  carrier,  and  whose  presence  would  be  detrimental  to  his  interests  or  the 
safety  and  convenience  of  passengers.'^  This  rule  follows  naturally  from  the 
strict  accountability  to  which  the  carrier  is  held  for  the  safety  of  passengers 
and  goods  intrusted  to  his  charge.  It  may  be  true  that  when  the  carrier  con- 
structs and  opens  station-houses  designed  for  the  reception  of  the  public,  by  so 
dohig  an  implied  license  is  prima  facie  given  to  all  persons  to  enter  his  premises, 
and  no  person  is  a  trespasser  by  merely  entering  therein.  But  such  a  license  is 
revocable,  and  when  revoked,  the  right  to  enter  or  remain  is  terminated.*  Thus, 
it  has  been  held  proper  to  exclude  by  force,  if  necessary,  an  innkeeper  from  a 
railroad  depot,  whose  habit  had  been  to  enter  the  depot  and  annoy  passengers  by 
soliciting  patronage  for  his  house,  having  been  previously  notified  that  he  must 
discontinue  the  practice.*  And  such  person's  rights  will  not  be  enhanced  in  the 
premises  even  though  he  has  in  his  possession  a  ticket  entitling  him  to  passage 
upon  the  defendant's  railroad,  and  he  enters  the  depot  with  the  bona  fide  inten- 
tion of  taking  the  cars,  if  he  fails  to  exhibit  the  ticket  when  ordered  to  leave 
the  station,  and  his  conduct  is  such  as  to  induce  the  defendant's  agent  to  believe 
that  his  intention  is  to  continue  to  violate  the  regulations  of  the  company.* 
But  the  carrier's  station-agMjit  will  not  be  justified  in  thus  removing  a  person 
merely  because,  in  his  judgment,  and  without  proof  of  the  fact,  he  has  violated 
regulations  of  the  company,  although  he  had  conducted  himself  offensively  to 
such  agent  personally-i^ 

A  person  resorting  to  a  railroad  station  for  the  purpose  of  taking  a  train 
should  come  within  a  reasonable  time  for  this  purpose  next  prior  to  the  departure 
of  the  train.  He  has  no  right  to  come,  it  may  be,  hours  before  such  departure, 
and  insist  upon  his  right  to  remain  there  merely  because  he  intends  to  take 
passage  on  a  train  sometime.'  An  omnibus  proprietor  who  carries  passengers 
and  their  luggage  for  hire,  to  and  from  a  railway  station,  cannot  maintain  an 
action  against  the  company  for  refusing  to  allow  him  to  drive  his  vehicle  inta 
their  station-yard.  Said  Jervis,  C.  J.,  in  this  case :  "  It  is  not  pretended  that 
the  plaintiff  was  using,  or  seeking  to  use,  the  railway.  What  right,  then,  can  he 
have  to  say  to  the  company,  'I  will  use  your  private  property  for  my  profit?' 

1  Central  R.  Co.  v.  Green,  82  Pa.  St.  426.  3  The  Commonwealth  v.  Power,  and  Har- 

*  Jcncks  V.  Coleman,  ante,  p.  11 ;  The  Com-  ris  v.  Stevens,  supra. 

monwealth  v.  Power,  7  Mete.  596;  Hams  t?.  *  The  Commonwealth   v.   Power,  supra; 

Stevens,  31  Vt.  79;  Barker  v.  Midland  R.  Co.,  Landrigan  v.  The  State,  31  Ark.  50. 

18  C.  B.  46.    See  also  Markham  v.  Brown,  8  '  The  Commonwealth  r.  Power,  supra. 


X.  H.  523. 


«  Hall  V.  Power,  12  Mete.  482. 
'  Harris  v.  Stevens,  31  Vt.  79. 


RUNNERS  AND  DRUMMERS.  351 


Trafficking  on  Carrier's  Vehicle. 

Tliere  is  no  pretence  for  the  action.     It  has  neither  principle  nor  any  color  of 
authority  to  sustain  it."  ^ 

A  carrier  is  not  bound  to  give  passage  to  a  person  who  desires  to  use  the 
facilities  which  such  passage  affords  for  trafficking  purposes  of  his  own.  Any 
other  rule  would  be  demoralizing  to  good  management.^ 

1  Barker  v.  Midland  R,  Co.,  18  C.  B.  v.  The  D.  R.  Martin,  11  Blatchf.  233;  s.  c.  & 
i6,  58.  Ch.   Leg.   N.  535;  suh  nom.  Barney  v.  The 

2  Jencks  v.  Coleman,  ante,  p.  II;  Barney       Oyster  Bay  &  Steamboat  Co.,  67  N.  Y.  301. 


CHAPTER    X. 

LIABILITY   OF  THE   CARRIER    FOR   ASSAULTS  UPON  PAS- 
SENGERS  BY   HIS   SERVANTS. 


XiEADiNG  Case:  Pendleton  v.  Kinsley.  —  This  liability  arises  out  of  the  contract 
of  carriage,  and  does  not  depend  upon  the  consideration 
whether  at  the  time  of  the  assault  the  servant  was  acting 
within  the  scope  of  his  employment. 

Notes:    §  1.  Wanton  and  malicious  trespasses  of  sen'ants. 

2.  Servant  acting  in  the  scope  of  his  employment. 

3.  Authority  of  servants  of  carrier  to  make  arrests. 

4.  Use  of  excessive  force  by  the  servant  in  the  execution  of  the 

carrier's  business. 
6.  Besume  of  the  circumstances  justifying  ejection  of  passenger. 
6.  Where  persons  may  be  expelled  from  a  railroad  train. 


Pendleton  v.  Kinsley.* 

Circuit  Court  of  the  United  States,  Rhode  Island  District,  1871. 

Before  Hon.  Nathan  Clifford,  LL.D.,  Associate  Justice  of  the  Supreme  Court, 
assigned  to  said  Circuit. 


1.  Unwarrantable  Assaults  upon  Passengers  by  the  Carrier's  Servants  are 
Breaches  of  the  Contract  of  Carriage,  and  as  such  impose  Liiability  upon 
the  Carrier.  —  The  principles  of  law  applicable  to  the  relations  of  master  and  servant 
do  not  fully  define  the  rights,  duties,  and  obligations  between  carriers  and  their  pas- 
sengers. They  are  not  merely  citizens,  bearing  only  towards  each  other  the  relations 
which  one  citizen  bears  to  another.  The  carrier  agrees  to  carry  for  hire  the  passenger 
from  one  place  to  another,  and  is  responsible  for  any  breach  of  the  obligation  thus 
assumed,  in  ill-usage  of  the  passenger  by  himself  or  employees.  Passengers  do  not 
only  contract  for  room  and  transportation,  but  for  good  treatment,  and  it  is  the  duty  of 
the  owners  to  use  due  care  and  exertion  to  protect  them  from  any  degree  of  violence, 
abuse,  or  ill-treatment  from  other  passengers,  or  the  carrier's  servants,  or  other  persons 
coming  on  board  during  the  trip.  The  principal  in  this  class  of  cases  is  liable  for 
the  misconduct  of  the  employee,  when  it  occasions  injury  to  the  passenger,  whether 
arising  from  malice  or  neglect. 

■2.  Case  in  Judgment.  —  While  collecting  fares  during  one  of  the  regular  trips  of  a 
steamer  owned  by  the  defendant,  the  clerk  of  the  steamer  engaged  in  a  dispute  with 
the  plaintiff,  a  passenger,  as  to  his  fare,  and  inflicted  personal  injuries  upon  him.  It 
was  held,  irrespective  of  the  dispute,  and  as  if  none  had  arisen,  that  the  plaintiff  could 
recover  for  the  injuries  received,  although  the  defendant  did  not  authorize  the  acts  of 
his  employee. 


•  Reported,  3  Cliff.  416. 


(352) 


ASSAULTS   UPON   PASSEKGEKS.  353 

United  States  Circuit  Court,  Rhode  Island. 

Case  against  the  defendant  to  recover  damages  for  injuries  result- 
ing to  the  plaintiff  from  an  assault  and  battery  alleged  to  have  been 
inflicted  upon  him  by  one  Charles  L.  Stanhope.  Personal  injuries  were 
inflicted  on  the  plaintiff  by  Charles  L.  Stanhope,  clerk  of  the  steamboat 
Perrj'-,  employed  at  the  time  and  for  many  3'ears  before  in  carrying 
passengers  and  freight  between  Newport  and  Providence,  in  this  dis- 
trict, and  he  brought  action  against  the  defendant,  as  the  owner  of  the 
steamer,  to  recover  compensation  for  the  injuries  so  inflicted  while  he 
was  a  passenger  on  board  the  steamer.  Service  having  been  made  upon 
the  defendant,  he  appeared  and  pleaded  the  general  issue,  and  upon 
that  issue  the  parties  went  to  trial,  and  the  jury,  under  the  instructions 
of  the  court,  returned  a  verdict  for  the  defendant,  subject  to  the  opinion 
of  the  court  upon  questions  of  law  reserved  by  the  court  for  further 
•consideration.  Evidence  was  introduced  by  the  plaintiff  suflScient  to 
warrant  the  jury  in  finding  that  the  defendant  was  owner  of  the  steamer 
for  the  vo\'age,  —  as  it  appeared  that  the  record-title  of  the  steamer  was 
in  his  name ;  that  the  clerk  was  in  the  employment  of  the  defendant. 
and  that  the  steamer  was  not  under  charter  to  any  other  person. 

Business  made  it  necessary  for  the  plaintiff  to  go  to  Providence  on 
the  29th  of  August,  1862,  and,  being  at  Newport  at  the  time,  he  went 
on  board  of  the  steamer  for  that  purpose  before  she  started  from  New- 
port on  her  morning  trip  to  the  former  place.  He  had  often  passed 
over  that  route  in  that  steamer  before,  and,  having  been  accustomed  to 
purcliase  tickets  for  the  trip,  of  the  clerk  of  the  steamer,  he  applied  to 
liim  for  one  on  this  occasion,  within  a  short  time  after  he  went  on  board, 
and  offered  him  a  one-dollar  bill  on  one  of  the  national  banks  of  the 
State  to  pay  for  the  ticket.  The  price  of  tickets  was  fifty  cents,  and 
the  witness  states  that  he  had  frequentl}^  offered  bills  for  tickets  before 
that  time,  and  seen  others  do  the  same  thing,  and  that  the  clerk  always 
received  the  bills  and  made  change  without  any  objection.  On  this 
occasion,  however,  he  refused  to  take  the  bill  or  give  him  a  ticket,  say- 
ing that  he  had  no  change ;  to  which  the  plaintiff  replied :  "If  you  have 
no  change,  give  me  postage-stamps."  But  the  clerk  replied  to  that  sug- 
gestion, that  he  iiad  no  postage-stamps,  and  suggested  that  the  plaintiff 
would  have  to  take  two  tickets  ;  to  which  the  plaintiff  replied  that  he  did 
not  want  two  tickets,  adding  that  he  was  not  accustomed  to  purchase 
tickets  in  advance.  Whereupon  the  plaintiff  left  the  main  deck,  where 
the  office  of  the  clerk  was,  and  went  to  the  saloon-deck,  above,  where 
there  were  many  gentlemen  and  ladies  and  children  sitting  on  the 
settees  facing  the  stern  of  the  steamei-.  Nothing  further  of  importance 
occurred  till  after   the  steamer   passed   Portsmoutii  Grove,  when  the 

23 


354  ASSAULTS    UPON    PASSENGERS 


Pendleton  v.  Kinsley. 


expvess-agent  came  round  to  collect  the  tickets  from  the  passengers,  as 
he  sometimes  did,  in  the  place  of  the  clerk  who  had  charge  of  that 
business.  He  went  to  the  plaintiff  and  asked  for  his  ticket,  but  the 
plaintiff  told  him  that  he  had  none ;  that  he  offered  to  pay  for  one 
when  he  first  came  on  board,  and  that  the  offer  which  he  made  was 
refused  ;  to  which  the  express-agent  replied,  "You  will  have  it  to  pay," 
and  passed  along.  In  a  few  minutes  the  clerk  and  the  express-agent 
came  up  together,  and  the  clerk  demanded  pay  for  his  fare  of  the  plain- 
tiff ;  but  the  plaintiff  replied  substantially  as  before,  that  he  had  once 
offered  to  pay  for  a  ticket,  and  that  he  (the  clerk)  had  refused  to  accept 
the  pay- for  the  same.  Here  the  conversation  ended,  but  the  clerk  seized 
the  plaintiff  by  the  collar  and  pulled  him  violently  from  the  settee  where 
he  was  sitting,  pushed  him  from  there  to  the  companion-way,  and  shoved 
him  down  those  steps  to  the  main  deck,  near  where  he  was  when  he 
offered  to  purchase  and  pay  for  a  ticket,  and  from  there  he  pushed  him 
to  the  companion-way  leading  to  the  lower  deck,  and  shoved  him  down 
that  passage-wa}^  also  to  the  lower  cabin,  and  set  him  down  violently  on 
the  seat  near  the  berths,  and  left  him  without  any  explanation.  Left 
alone,  he  remained  there  for  a  short  time,  and  then  went  to  the  saloon- 
deck,  where  he  was  when  he  was  assaulted ;  and  on  the  arrival  of  the 
steamer  at  Providence  he  left  her  unmolested,  and  on  the  following  day 
returned  to  his  own  residence. 

Evidence  was  introduced  by  the  plaintiff  tending  to  show  that  he  was 
seriously  injured  in  his  back  and  other  parts  of  his  body,  and  that  the 
injuries  were  of  a  permanent  character.  Much  testimony  was  intro- 
duced as  to  the  extent  of  his  injuries,  but  it  is  unnecessary  to  refer  to  it 
in  this  report,  as  the  defendant  at  the  close  of  the  plaintiff's  case  moved 
the  court  to  instruct  the  jury  that  in  view  of  the  whole  evidence  the 
plaintiff  could  not  recover,  and  that  their  verdict  should  be  for  the 
defendant,  and  the  court  gave  that  instruction  as  requested.  After  the 
verdict  a  motion  for  a  new  trial  was  duly  filed  by  the  plaintiff,  and  the 
parties  were  heard  upon  the  question  whether  the  defendant,  in  any  view 
of  the  evidence,  was  liable  for  the  assault  committed  on  the  plaintiff  b}- 
the  clerk  of  the  steamer. 

J.  31.  Blake  and  F.  W.  Miner,  for  plaintiff;  W.  P.  Sheffield,  for 
defendant. 

Clifford,  J. — Owners  of  vessels  engaged  in  carrying  passengers 
assume  obligations  somewhat  different  from  those  whose  vessels  are 
employed  as  common  carriers  of  merchandise.  Obligations  of  the 
kind  in  the  former  case  are  in  some  respects  less  extensive  and  more 
q-ialified  than  in  the  latter,  as  the  owners  of  the  vessel  carrying  pas- 


BY    THE    CAKRIEU'S    SERVANTS.  355 

United  States  Circuit  Court,  Rhode  Island. 

sengers  are  not  insurers  of  the  lives  of  their  passengers,  nor  even  of 
their  safety,  but  in  most  other  respects  the  obligations  assumed  are 
equally  comprehensive  and  stringent.  Carriers  of  passengers  by  land, 
it  was  said  in  one  of  the  earl}^  cases,  are  not  liable  for  injuries  happen- 
ing to  passengers  from  unforeseen  accident  or  misfortune,  where  there 
has  been  no  negligence  or  default ;  but  it  was  held  in  the  same  case 
that  the  smallest  negligence  would  render  the  carrier  liable,  and  that 
the  question  of  negligence  was  for  the  jur3\i  Where  the  injury  for 
which  the  action  was  brought  resulted  froui  the  breaking  of  the  axle 
of  the  coach,  the  court  held,  in  the  case  of  Christie  v.  Griggs,'^  that 
"when  the  breaking  down  or  overturning  of  a  coach  is  proved,  negli- 
gence on  the  part  of  the  owner  is  implied,"  subject,  of  course,  to 
opposing  testimony;  that  the  question  of  negligence  was  for  the  jury; 
that  if  it  appeared  that  the  axletree  was  sound,  •'  as  far  as  the  human 
eye  could  discover,"  the  defendant  was  not  liable ;  that  there  was  a 
difference  between  a  contract  to  carry  goods  and  a  contract  to  carr}' 
passengers ;  that  the  carrier  of  goods  was  liable  at  all  events ;  that  the 
carrier  of  passengers  did  not  warrant  their  safety ;  that  his  undertaking 
went  no  further  than  that  he  would  provide  for  their  safe  conve^'ance,  as 
far  as  human  care  and  foresight  could  go ;  that  the  owner  was  liable  if 
there  was  the  least  negligence ;  but  that  the  plaintiff  had  no  remedy  for 
the  misfortune,  if  the  breaking  down  of  the  coach  was  purel3'  accidental. 
Attempts  have  been  made  to  show  that  the  rnle  laid  down  in  the  case  of 
Sharp  V.  Grey  ^  is  more  stringent  against  the  owner,  but  the  question 
submitted  to  the  jury  in  that  case  was  whether  the  degree  of  vigilance 
practised  by  the  defendant  was  such  as  was  required  b}'  his  engage- 
ment, and  two  at  least  of  the  judges  concurred  in  refusing  the  motion  for 
the  new  trial  upon  the  ground  that  the  question  was  one  of  fact  for  the 
jury.  The  remarks  of  the  chief  justice  in  the  case  of  Crofts  v.  Water- 
house  *  are  sometimes  referred  to  as  advancing  a  more  stringent  rule, 
but  the  opinion,  taken  as  a  whole,  furnishes  no  support  to  the  sugges- 
tion, and  his  associate  on  the  occasion  stated  in  terms  that  a  carrier  of 
passengers  is  onl}^  liable  for  negligence.  Proprietors  of  stage-coaches, 
it  is  held  in  the  case  of  Ingalls  v.  B>lh^^  are  not  answerable  for 
an  injury  to  a  passenger  which  happens  by  reason  of  a  hidden  defect 
in  an  iron  axleuve,  wliich  defect,  being  entirely  surrounded  by  sound 
iron  one-fourLli  of  an  inch  thick,  could  not  be  discovered  by  the  most 
careful  external  examination.  Carriers  of  passengers  by  railways  or 
steamers  are  bound  to  greater  precautions,  and  to  a  higher  degree  of  care, 

1  Aston  V.  Heaven,  2  Esp.  533.  3  9  Ring.  457.  4  3  Ring.  319. 

-  2  Camp.  79;  s.  c.  ante,  p.  181.  <>  9  Mc-tc.  l;s.c.  ante,  p.  112. 


356  ASSAULTS    UPON    PASSENGERS 

Pendleton  v.  Kinsley. 

skill,  and  vigilance  in  the  preparation  and  management  of  the  vehicles  or 
means  of  conveyance,  than  are  required  of  the  owners  of  stage-coaches, 
because  the  car  of  the  railway  proprietor  and  the  steamer  of  the  carrier 
by  water  are  intended  to  sustain  far  greater  weight,  and  are  to  be  pro- 
pelled by  much  greater  power  and  at  much  greater  speed,  i 

Passengers  must  take  the  risk  incident  to  the  mode  of  travel  which 
they  select ;  but  those  risks,  in  the  legal  sense,  are  only  such  as  the 
utmost  care,  skill,  and  caution  of  the  carrier  in  the  preparation  and 
management  of  the  means  of  conveyance  are  unable  to  avert.^  Dam- 
ages were  claimed  by  the  plaintiff  in  that  case  for  injuries  received  by 
the  breaking  of  the  axle  of  a  railway  car  in  which  he  was  riding,  and 
the  defence  was  that  the  car  was  a  new  one,  recently  purchased  of  a 
manufacturer,  of  skill  and  good  repute,  and  that  it  was  carefully  exam- 
ined at  the  time  of  the  purchase ;  that  the  track  was  in  good  condition ; 
that  the  speed  of  the  train  was  not  excessive ;  and  that  the  employees 
were  sufficient  in  number  and  of  sufficient  experience  and  skill,  and 
that  they  were  guilty  of  no  negligence ;  but  the  court  instructed  the 
jury  that  it  made  no  difference  whether  the  car  was  constructed  by  the 
company  or  purchased  of  an  experienced  manufacturer,  as  the  defend- 
ants were  liable  in  either  event  if  the  defect  could  have  been  discovered 
in  the  process  of  manufacturing  the  axle  or  car,  by  the  application  of 
any  test  known  to  men  skilled  in  that  business,  and  the  Court  of  Appeals 
affirmed  the  judgment.  They  held  that  the  carrier  of  passengers  was 
bound  to  the  utmost  precaution,  care,  and  skill  in  the  preparation  and 
management  of  the  means  of  conveyance ;  but  they  conceded  that  the 
carriers  of  passengers  were  not  insurers,  and  that  latent  defects  might 
exist  in  machinery,  undiscoverable  by  the  most  improved  and  vigilant 
examination,  and  from  which  the  most  serious  accidents  may  occur. 

Expressions  are  found  in  the  opinion  of  the  court  in  the  case  of 
Boyce  v.  Anderson  ^  which  leave  it  to  be  inferred  that  the  court  was  of 
the  opinion  that  the  carriers  of  passengers  were  only  required  to  exer- 
cise ordinary  skill  and  care  to  secure  their  safety ;  but  the  correct  rule 
is  stated  in  the  case  of  Stokes  v.  SaltonstaU,'^  where  the  same  court  held 
that  proof  of  the  accident  and  alleged  injury  afforded  a  x>'^^'^^^  facie 
presumption  that  there  was  carelessness,  negligence,  or  want  of  skill 
cm  the  part  of  the  driver ;  that,  it  being  admitted  that  the  carriage  was 
upset,  and  that  the  plaintiff  was  injured,  it  was  incumbent  on  the 
defendant  to  prove  that  the  driver  was  a  person  of  competent  skill,  of 

1  Simmons  v. New  Bedford  etc.  Steamboat  a  Hegeman  t>.  Western  R.  Co.,  13  N.  Y.  24 ; 

Co.,  97  Masa.  367.  ».  c.  ante,  p.  160.  »  2  Pet.  150. 

*  13  Pet.  181 ;  s.  c.  ante,  p.  183. 


BY    THE    carrier's    SERVANTS.  357 

United  States  Circuit  Court,  Rhode  Island. 

good  habits,  and  in  every  respect  qualified  and  suitably  prepared  for 
tVie  business  in  which  he  was  engaged,  and  that  he  acted  on  the  occa- 
sion with  reasonable  skill,  and  with  the  utmost  prudence  and  caution  ; 
and  if  the  disaster  in  question  was  occasioned  by  the  least  negligence 
or  want  of  skill  or  prudence  on  his  part,  then  the  defendant,  as  the 
owner  of  the  coach,  was  liable  in  that  action.'  Negligence  in  the 
smallest  degree  renders  the  carrier  liable  ;  and  there  is  one  case  in  which 
it  was  held  that  a  railroad  corporation  was  liable  for  injuries  to  a  pas- 
senger caused  by  a  defect  in  an  iron  axle  of  a  car,  although  it  was  of 
such  a  character  that  it  could  not  have  been  discovered  l)y  any  prac- 
ticable mode  of  examination ;  but  the  rule  there  laid  down  is  expressly 
disapproved  in  a  recent  judgment  of  the  Exchequer  Chamber,  and 
cannot  be  adopted  in  this  circuit  until  it  is  approved  by  the  Supreme 
Court.2  Such  carriers  are  not  insurers  against  accidents,  nor  are  they 
required  to  do  what  is  impossible  in  the  nature  of  things.  ^  Undoubtedly 
they  are  bound  to  the  higliest  degree  of  care,  prudence,  and  caution  ; 
but- if  the  injury  results  from  a  hidden  defect  in  the  car,  engine,  or  other 
apparatus,  unknown  at  the  time,  and  which  could  not  be  detected  by  any 
known  means,  they  are  not  responsible,  because  the  obligation  which 
they  assumed  did  not  require  what  it  was  not  in  their  power  to  perform.'* 
Whether  the  owners  of  a  vessel  engaged  in  carrying  passengers  by  water 
are  or  are  not  insurers  as  to  the  seaworthiness  of  the  vessel,  it  is  not 
necessary  to  inquire,  as  no  complaint  is  made  in  this  case  that  the 
steamer  was  not  in  a  seaworthy  condition.^  Passengers,  however,  con- 
tract with  the  proprietors  or  owners  of  the  conveyance,  and  not  with 
their  agents  as  principals,  and  the  question  of  the  liability  of  the  pro- 
prietor or  owner  is  wholly  unaffected  by  the  fact  that  the  defective  car, 
engine,  or  other  apparatus  was  purchased  of  another,  if  the  defect  was 
one  which  might  have  been  discovered  by  any  known  means.  Whether 
their  engine  or  car  was  manufactured  at  their  shop  or  was  purchased  of 
other  manufacturers,  the  company  is  equally  liable  to  see  that  in  the 
construction  no  care  or  skill  was  omitted  for  the  purpose  of  making  the 
car  or  engine  as  safe  as  the  utmost  care  and  reasonable  skill  could  make 
it.     Precautions  of  the  kind  are  required  of  the  carrier  to  provide  for 


'  Hall   V.  Connecticut    River    Steamboat  ^  i  Smith's  Ld.  Cas.  (5th  ed.)  328. 

Co.,  13  Conn.  320;  Briggs  v.  Taylor,  28  Vt.  ••  McElroy  t'.  Nashua  R-  Co.,  4  Gush.  400; 

180;  Redf.  on  Rys.  175;  Galena  etc.  R.  Co.  v.  Story  on  Bail.  581. 
Yarwood,  17  111.  500.  6  3  Kent's  Comm.  (11th  ed.)  205;  Lyon  «. 

2  Alden  ?'.  New  York  etc.  R.  Co.,  26  N.  Y.  Mells,  5  East,  428;  Putnam  v.  Wood,  3  Mass. 

102;  Readhcad  v.  Midland  R.  Co.,  L.  R.  2  Q.  481;  Silva  v.  Low,  1  Johns.  Cas.  184;  Whilull 

B  il2 :  s.  c.  L.  R.  4  Q.  B.  379,  aiite,  p.  124 ;  Sim-  v.  The  William  Henry,  4  La.  tl.',. 
oanu  «  Steaml>oat  Co.,  97  Mass.  368. 


358  ASSAULTS    UPON    PASSEKGERS 

Pendleton  v.  Kinsley. 

the  safety  of  passengers  ;  but  the  obligation  which  the  carrier  assumes  in 
that  behalf  extends  beyond  the  specified  requirements  in  respect  to  the 
vehicle,  car,  or  other  means  of  conveyance,  and  also  includes  an  implied 
stipulation  for  good  treatment  of  the  passenger  during  the  passage,  trip, 
or  vo3'age,  and  especially  against  ill-treatment  by  the  carrier  or  his 
employees,  and  against  every  degree  of  violence  on  their  part,  or  wanton 
interference  with  his  person.  Mistakes  occur  in  such  litigations  by 
overlooking  the  fact  that  it  is  the  carrier,  whether  corporation  or  natural 
person,  that  assumes  these  obligations,  and  not  the  driver,  master,  or 
conductor  of  the  conveyance,  for  the  breach  of  which  a  right  of  action 
accrues  to  the  passenger.  Breaches  of  the  obligation  assumed  by  the 
carrier  for  proper  treatment  of  his  passengers,  it  is  conceded,  would  give 
a  right  of  action  to  the  passenger  if  the  acts  constituting  the  breach  were 
committed  bj'^  the  carrier  himself ;  but  the  argument  is  that  the  carrier 
is  not  responsible  for  any  wilful  trespass  committed  by  the  driver,  con- 
ductor, or  master,  unless  it  be  shown  either  that  he  authorized  the  act, 
or  ratified  it  after  it  was  committed. 

Many  decided  cases  may  be  found  where  it  is  held  that  the  master  is 
not  liable  for  the  wilful  act  of  his  servant,  unless  previously  authorized 
or  subsequently  ratified;  but  none  of  these  cases  can  have  any  proper 
application  to  the  controversy  before  the  court. ^  Examined  carefully, 
it  will  be  found  that  all,  or  nearly  all,  of  those  decisions  may  be  divided 
into  two  classes,  neither  of  which  will  afford  much  aid  iu  the  solution  of 
the  question  involved  in  the  present  motion:  1.  Cases  where  it  is  held 
that  trespass  will  not  lie  against  the  master  for  the  wrongful  act  of  his 
servant;  2.  Controversies  where  it  appears  that  the  acts  of  the  servant 
constituting  the  cause  of  action  were  not  done  by  the  servant  in  the 
course  of  his  employment. 

Doubts  are  expressed  by  an  able  text-writer  whether  the  court  in  the 
leading  case  ever  intended  to  decide  more  than  that  the  master  is  not 
liable  in  trespass  for  the  wilful  act  of  the  servant;  and  it  must  be 
admitted  that  the  reasons  assigned  for  the  conclusion  are  well  put,  and 
that  they  are  entitled  to  great  consideration. ^  Suppose  that  view,  how- 
ever, is  not  correct,  then  it  is  clear  that  the  rule  laid  down  in  that  case 
is  not  applical)le  in  actions  against  corporations,  as  it  is  well  settled 
that  they  are  responsible  for  acts  done  by  their  agents,  "either  m  con- 
tractu or  in  delicto,"  if  done  "in  the  course  of  its  business  and  of  their 
employment."  ^ 

»  McManus  v.  Crickett,  1  East,  108;  Croft  «  1  Redf.  on  Rys.  (3d  ed.)  512. 

».  Alison,  4  Barn.  &  Aid.  590;  VViiglit  i>.  Wil-  3  phjia.   etc.   R.  Co.  v.  Quigley,  21  How. 

cox,  19  Wend.  343.  210;  Moore  v.  Fitchburg  R.  Co.,  4  Gray.  465; 


BY    THE    carrier's    SERVANTS.  359 

United  States  Circuit  Court,  Ehode  Island  .- 

Extended  remarks  respecting  the  second  class  of  cases  is  unnecessar}', 
as  it  fully  appears  that  the  clerk,  in  collecting  the  tickets,  was  engaged 
in  the  business  of  the  defendant,  and  was  in  the  course  of  his  employ- 
ment. Masters  are  bound  by  the  acts  of  their  servants  whenever  there 
is  an  express  command  of  the  master  to  make  a  contract  or  do  an 
injury,  or  where  a  servant  does  an  injury  in  the  immediate  pursuit  of 
bis  master's  business,  or  where  an  injury  arises  to  another  through  the 
negligence  or  want  of  skill  of  the  servant.^  Questions  of  the  kind  also 
involve  to  some  extent  the  relations,  obligations,  and  liabilities  of  prin- 
<'ipal  and  agent,  as  in  many  cases  the  act  of  the  agent  is  the  act  of  the 
principal,  and  it  is  well  settled  that  the  representations,  declarations, 
and  admissions  of  the  agent  in  the  course  of  his  agency  are  deemed  a 
l)art  of  the  res  gestae,  and  are  equally  obligatory  upon  the  principal  as 
if  made  by  himself.  Principals  are  not  in  general  responsible  for  the 
criminal  acts  or  misdeeds  of  their  agents,  but  they  are  held  liable  to 
third  persons,  in  a  civil  suit,  for  the  frauds,  deceits,  concealments,  mis- 
representations, torts,  negligence,  and  otlier  malfeasances  or  misfeasances 
and  omissions  of  duty  of  their  agents  in  the  course  of  their  employment, 
tliough  the}'  did  not  authorize  the  acts,  nor  participate  in  the  transac- 
tion, and  even  if  they  forbade  or  disapproved  what  was  done.  Such,  in 
substance,  are  the  views  of  Judge  Story,  as  expressed  in  liis  work  on 
Agency ;  and  the  Supreme  Court  have  decided  that  tlie  rule  of  respondeat 
siqierior,  or  that  the  master  shall  be  civilly  responsible  for  the  tortious 
acts  of  his  servant,  is  of  universal  application,  whether  the  act  be  one 
of  omission  or  commission,  whether  negligent  or  deceitful ;  that  if  it 
be  done  in  the  course  of  the  employment  of  the  servant,  the  master 
■  is  liable  ;  and  that  it  makes  no  difference  that  the  master  did  not  autlior- 
ize  or  know  of  tlie  act  or  neglect,  or  even  if  he  disapproved  or  forbade 
it,  he  is  equally  liable  if  the  act  be  done  by  the  servant  in  the  course  of 
liis  eraployment.2 

Tested  by  these  considerations,  it  is  quite  clear  that  the  instruction 
given  by  the  court  to  the  jury  was  erroneous,  and  that  the  verdict  should 
be  set  aside  and  a  new  trial  granted.  But  the  court  is  of  the  opinion 
tiiat  the  principles  of  law  ap|)lical)le  in  litigations  growing  out  of  the 
relations  of  principal  and  agent  or  master  and  servant  are  not  the  prin- 
ciples which  fully  define  the  rights,  duties,  obligations,  and  liabilities  of 

Maund  v.  Monmouth  Canal  Co.,  4  Man.  &  G.  i  Reeve's  Dom.  Rcl.  (M  ed.)  356. 

A:>1;  Phila.  etc.  K.  Co.  v.  Derby,  14  How.  4h;5;  2  story  on  Agency,  §  4.5'i  ;  Phila.  etc.  R.  Uo. 

s.  fl.   ante,  p.   31;    National   Express    Co.  v.  v.  Derby,  14  How.  I'r.  480;   s.  c.  ante    p.  31; 

D  ew,  2  Macq.  H.  L.  Cas.  103;  s.  c.  33  Eng.  Smith's  M.  &S.  152;  Sleath  v.  Wil.soii,  9  Car. 

I.iiw  &  Ell.  1;   1  Pat.  So.  App.  482;    (Joff  v.  &  1'.  (iOT ;  The  Xew  World  v.  King,  10  How. 

G:eat  Northern  R.  Co.,  3  El.  &  El.  074.  474;  s.  c.  ante,  p.  175. 


360  ASSAULTS    UPON    PASSENGERS 

Pendleton  v.  Kinsley. 

the  parties  to  this  controversy.  They  are  not  strangers  bearing  no 
other  relations  to  each  other  than  one  citizen,  merely  as  such,  bears  to 
anuther ;  but  the  defendant  was  a  carrier  of  passengers  by  water,  and 
the  plaintiff  was  a  passenger  on  board  the  steamer  of  the  defendant, 
which  was  engaged  in  carrying  passengers  for  hire  between  two  com- 
mercial ports.  Difficulty  occurred  as  to  making  change  in  the  sale  and 
purchase  of  a  ticket  for  the  trip,  but  the  court  lays  that  circumstance 
out  of  the  case,  as  it  is  clear  that  the  omission  to  purchase  a  ticket  gave 
the  clerk  of  the  steamer  no  right  whatever  to  inflict  any  personal  vio- 
lence on  the  plaintiff.  Fare  not  having  been  paid  by  the  plaintiff,  the 
carrier,  if  he  thought  proper,  might  have  requested  him  to  leave  the 
steamer ;  and  if  the  request  had  been  seasonably  made,  and  the  plaintiff 
had  refused  to  pay  or  leave,  the  carrier  might  at  a  proper  time  and  place 
have  stopped  the  steamer,  and  might  have  removed  the  plaintiff  from 
the  steamer  to  the  shore,  taking  care  to  use  no  more  force  than  was 
reasonably  necessary  for  that  purpose. 

Nothing  of  the  kind,  however,  was  done  or  attempted,  and  the  ques- 
tion as  to  the  rights,  duties,  obligations,  and  liabilities  of  the  parties  to 
the  suit  must  be  determined  solely  in  view  of  the  facts  as  stated  in  the 
commencement  of  the  opinion.  Viewed  in  that  light,  as  the  case  must 
be,  then  it  appears  that  the  clerk  of  the  steamer  demanded  fare  of  the 
plaintiff,  and  that  the  plaintiff  having  refused  to  pay  as  requested,  the 
clerk  seized  him  by  the  collar,  and  inflicted  personal  violence  upon  him 
in  the  manner  and  by  the  means  set  forth  in  the  statement.  Unjustifia- 
ble as  the  conduct  of  the  clerk  was,  the  case  must  be  viewed,  as  between 
these  parties,  just  as  it  would  be  if  no  dispute  had  arisen  as  to  the  fare, 
and  the  questions  to  be  decided  are  whether  the  defendant  is  liable  for  * 
the  injuries  inflicted  upon  the  plaintiff  by  the  clerk,  and,  if  so,  upon 
what  ground  does  that  liability  rest.  Sufficient  has  already  been 
remarked  to  show  that  the  owner  of  the  steamer  is  liable  to  the  plaintiff 
for  the  injuries  inflicted  upon  him  by  the  agent  of  the  owner,  but  it  is 
quite  important,  in  case  of  a  new  trial,  to  ascertain  upon  what  ground 
that  liability  arises,  —  whether  merely  as  a  principal  answering  for  the 
acts  of  his  agent  in  the  course  of  his  employment,  or  as  a  carrier  of 
passengers  answering  as  such,  for  a  breach  of  the  obligation  which  he 
assumed  as  such  carrier, that  the  plaintiff,  as  his  passenger,  should  not 
be  ill-treated  by  himself  or  his  employees,  and  that  he  and  they  should 
use  all  due  care  and  proper  exertion  to  protect  him,  as  such  passenger, 
from  any  degree  of  violence  or  any  kind  of  abuse  or  ill-treatment  from 
other  passengers,  or  other  persons  coming  on  board  during  the  trip.^ 

1  Flint  V.  Norwich  etc.  Transp.  Co.,  34  Conn.  554. 


BY    THE    carrier's    SERVANTS.  361 

United  States  Circuit  Court,  Rhode  Island. 

Ship-owners,  as  well  as  the  proprietors  of  conveyances  by  land,  select 
and  appoint  their  own  agents  without  consulting  their  passengers,  and 
it  is  but  reasonable  that  they  should  be  held  responsible  for  any  act  of 
violence  to  the  passenger  of  which  such  employees  may  be  guilty,  as 
the  moment  the  passenger  enters  the  steamer  or  other  conveyance  he  is 
more  or  less  under  the  control  of  the  master  or  conductor,  and  subject 
to  their  orders.  Fit  or  unfit,  humane  or  brutal,  good-tempered  or 
morose,  the  passenger  is  comparatively  helpless,  and  may  be  obliged  to 
submit  for  the  time  without  any  means  of  redress.  He  may  have  his 
remedy  against  the  carrier,  it  is  said,  if  he  can  prove  that  the  carrier 
was  negligent,  or  that  the  active  person  was  the  agent  of  the  carrier 
and  was  in  the  course  of  his  employment,  but,  if  not,  he  must  be  con- 
tent with  his  remedy  against  the  assailant  of  his  person.  Adjudged 
cases  may  be  referred  to  which  support  that  proposition  without  qualifi- 
cation, but  they  do  not  give  full  scope  and  effect  to  the  obligation  which 
the  carrier  assumes  towards  his  passenger,  nor  to  the  rights  and  duties 
which  those  relations  create  and  imply. 

Passengers  do  not  corftract  merely  for  shiproom  and  transportation 
from  one  place  to  another,  but  they  also  contract  for  good  treatment, 
and  against  personal  rudeness  and  every  wanton  interference  with  their 
persons,  either  by  the  carrier  or  his  agents  employed  in  the  management 
of  the  ship  or  other  conveyance,  and  for  the  fulfilment  of  those  obliga- 
tions the  carrier  is  responsible  as  principal ;  and  the  injured  party,  in  case 
the  obligation  of  good  treatment  is  broken,  whether  by  the  principal  or 
his  employees,  may  proceed  against  the  carrier  as  the  party  bound  ta 
make  compensation  for  the  breach  of  the  obligation.^  Sickness  and 
Suffering  were  experienced  by  the  wife  of  the  plaintiff,  in  the  case  of 
Weed  V.  Panama  Railroad  Company,  in  consequence  of  the  failure  of 
the  train  to  arrive  at  the  usual  time,  and  the  evidence  showed  that 
the  detention  was  the  wilful  act  of  the  conductor.  Proof  of  that  fact 
having  been  given,  the  defendants  contended  that  they  were  not  liable ; 
but  the  court  refused  so  to  instruct  the  jury,  and  the  Court  of  Appeals 
held  that  the  prayer  for  instruction  was  properly  refused,  as  the  proof 
offered  that  the  act  of  the  conductor  was  wilful  constituted  no  defence 
to  the  action.  High  authority  exists,  if  any  be  needed,  in  support  of 
the  proposition  that  the  owners  of  a  vessel  are  responsible  for  the  whole 
conduct  of  the  master  while  he  is  on  board  and  in  command  of  the 
vessel,  unless  his  acts  amount  to  a  criminal  offence.^     Civilly  speaking, 

1  Chamberlain    v.    Chandler,    3    Mason,       ardi,  5  La.  431 ;  Block  v.  Bannerman,  10  La. 
246;  Nieto  v.  Clark,  1   Cliff.  145;    Weed  v.       An.  3. 
Panama  R.  Co.,  17  N.  Y.  362;  Keene  v.  Liz!  2  The  Nimrod,  7  Notes  of  Cas.  ,559. 


o(i2  ASSAULTS    UPON    PASSENGERS 

Pendleton  v.  Kinsley. 

8a3-s  Dr.  Lushington,  in  that  case  the  owners  are  responsible  for  any 
deviation  of  the  master  from  that  line  of  conduct  which  it  behooves  him 
to  perform,  not  simply  in  the  navigation  of  the  vessel  and  in  the  care 
of  his  own  seamen,  but  in  the  care  of  those  who  may  be  thrown  on 
board  his  ship,  even  by  an  accident,  as  was  the  fact  in  that  case.  Most 
of  the  recent  cases  in  which  the  principle  involved  in  such  a  controversy 
is  considered,  proceed  upon  the  ground  that  where  the  misconduct  of 
an  agent  causes  a  breach  of  the  obligation  or  contract  of  the  principal, 
then  the  principal  is  liable  in  an  action  to  the  injured  party,  whether 
such  misconduct  be  wilful  or  malicious  or  merely  negligent ;  and  it 
would  seem  that  it  must  be  so,  as  the  cause  of  action  arises  from  the 
breach  of  the  obligation,  and  if  so,  it  cannot  make  any  difference 
whether  the  breach  was  occasioned  by  the  act  of  the  principal  or  of 
his  employees.     Qui  facit  per  aliuni,  facit  per  se.i 

Conductors  and  emploj-ees  of  a  railroad  company  represent  the  com- 
pany in  the  discharge  of  their  functions,  and,  being  in  the  line  of  their 
duty  in  collecting  the  fare  or  taking  up  tickets,  the  corporation  is  liable 
for  any  abuse  of  their  authority,  whether  of  omission  or  commission ; 
and  the  same  rule  must  be  applied  in  a  suit  against  the  owner  of  a 
steamer  as  the  carrier  of  passengers  for  the  misconduct  of  the  master, 
as  the  owners  of  a  vessel  carrying  passengers  for  hire  are  liable  for 
breaches  of  duty  of  the  master  to  the  passengers  equally  as  they  are 
in  case  of  merchandise  committed  to  their  care.^  Owners  are  liable  for 
the  conduct  of  the  master,  as  master,  during  the  voyage,  and  for  any 
ill-treatment  of  the  passengers  by  the  master  in  his  capacity  as  such, 
a  remedy  may  be  had  against  the  vessel  herself.  ^  Vessels  carryiivg 
passengers  for  hire,  says  Mr.  Justice  Nelson,  stand  on  the  same  foot- 
ing of  responsibility  as  those  carrying  merchandise,  the  passage-money 
in  the  former  case  being  the  equivalent  for  the  freight  in  the  latter ; 
that  the  vessel  as  well  as  the  owner  is  responsible  for  a  breach  of  a 
contract  with  the  passenger. ^  Repeated  decisions  of  the  Supreme 
Court  of  Massachusetts  are  to  the  same  effect,  as  will  sufficiently  appear 
by  the  following  citations:  Moore  v.  Fitchburgh  Railroad  Company,^ 
Hewett  V.  Swifts  Wherever  there  is  a  contract  between  the  master  and 
another,  the  master,  says  Hoar,  J.,  is  responsible  for  the  acts  of  his 
servant  in  executing  the  contract,  although  the  act  is  fraudulent  and 

1  MUwaukee  etc.  R.  Co.  v.  Finney,  10  Wis.  Lizardi,  5  La.  431;  Sanford  v.  Eighth  Avenue 
388;  Goddard  v.  Grand  Trunk  K.  Co.,  57  Me.  K.  Co.,  23  N.  Y.  344.  ■  Abb.  Adm.  257. 
202;  Pittsburgh  etc.  R.  Co.  v.  Hinds,  53  Pa.            ••  The  Aberfoyle,  1  Blatchf.  360;  Pars,  on 
St.  515;  8.  c.  ante,  p.  295.  Ship.  30;  The  Revenge,  3  Wash.  267;  Ralston 

2  3  Kent's  Coram,  (ed.  1866)  160;  Baltimore  v.  Steamer  State  Rights,  Crabbe,  46. 
etc.  R.  Co.  V.  Blocher,  27  Md.  286;  Keene  v.  »  4  Gray,  465.  «  3  Allen,  423. 


BY    THE    carrier's    SERVANTS.  363 

Wanton  and  Malicious  Trespasses  of  Ser\iints. 

one  without  his  consent.'  Examined  in  any  point  of  view,  the  court  is 
of  opinion  that  the  instruction  given  to  the  jury  was  erroneous,  and  the 
verdict  is  set  aside  and  a 

New  trial  granted. 


NOTES. 

§  1.  Wanton  and  Malicious  Trespasses  of  Servants.  —  In  McManusy.  Crick- 
ett,^  Lord  Kenyox  greatly  desired  to  settle  the  law  in  regard  to  the  liability  of 
the  master  for  the  acts  of  his  servants,  saying:  "  It  is  a  question  of  very  general 
concern,  and  has  been  often  canvassed:  but  I  hope  at  last  it  will  be  at  rest." 
This  case  is  authority  for  the  proposition  that  a  master  is  not  liable  for  the  mali- 
cious acts  of  his  servant,  which,  generally  speaking,  is  true ;  but  the  proposition 
has  many  qualifications,  so  that  the  case  establishes  only  a  general  principle. 
This  principle,  too,  has  more  especial  application  in  actions  of  tort  for  injuries 
inflicted  by  the  servants  upon  third  persons,  where  the  master  owes  no  especial 
<luty  of  protection  to  the  injured  person,  other  than  that  which  each  citizen  owes 
to  every  other,  as  expressed  in  the  maxim,  Sic  utere  tuo  ut  alienum  non  Icedas. 
But  when  by  express  contract  the  master  owes  a  duty  of  protection  to  third 
persons,  or  when  this  obligation  is  implied  by  virtue  of  another  contract,  as  that 
between  carrier  and  passenger,  the  former  being  under  the  obligation  to  exer- 
cise the  highest  degree  of  care  of  which  human  foresight  is  capable,  for  the 
benefit  of  the  latter,  the  master  cannot,  by  entrusting  the  performance  of  this 
duty  to  others,  shield  himself  from  the  consequences  of  his  servants'  miscon- 
duct by  asserting  that  they  have  acted  in  disregard  of  instructions,  or  otherwise 
have  proved  false  to  their  trust. '^ 

It  is  not  consonant  with  the  principle  of  respondeat  superior  that  an  exception 
or  qualification  of  this  kind  should  be  introduced  to  completely  obviate  the 
salutary  operation  of  the  rule.  Corporations  can  act  only  through  their  agents, 
and  if  the  torts  of  such  agents  constitute  no  wrong  on  the  part  of  the  corporate 
organization,  then  it  follows  that  a  corporation  can  do  no  wrong.  Said  Ry.vn, 
C.  J.,  in  a  late  and  most  instructive  case  upon  this  point:  *  "  Wliere  was  the  cor- 
poration, and  by  whom  represented,  as  to  this  contract  and  this  passenger?  Not, 
surely,  in  some  foreign  board-room,  by  directors  making  regulations  and  appoint- 
ing agencies  for  the  corporate  business.  They  could  not  perfoi'm  this  contract. 
Not,  surely,  in  some  distant  office,  by  a  superintendent  or  manager  issuing  the 
orders  of  the  directors  to  liis  subordinates.  He  could  not  perform  this  contract. 
Quoad  this  contract  and  this  passenger,  the  corporation  was  present  on  this 
train,  to  keep  it  and  to  care  for  her,  represented  by  the  officers  of  the  train,  who 
possessed,  pro  hac  vice,  the  whole  power  and  authority,  and  were  the  living 

'  Howe  V.  Xewmarch,  12  Allen,  55;  Sey-  *  1  East,  106.    See2Thomp.  onNeg.,p.  865. 

mour    V.    (Jreenwood,    7    Hurl.    &    N.   :'.57;  »  Phila.  etc.  R.  Co.  v.  Derby,  14  How.  468, 

Ayi-rigg's  Executors  v.  New  York  etc.  U.  Co.,  ante,  i>.  31. 

30  X.  J.  L.  iCl;  Pennsylvania  It.  Co.  v.  Van-  <  Craker  v.  Chicago  etc.R.  Co.,  36  Wis.  657, 

diver,  42  Pa.  St.  :}70.  673. 


364  ASSAULTS    UPON    PAS^ENGEK. 


Notes. 


embodimeut  of  the  ideal  entity  which  made  the  contract  and  was  bound  to  keep 
it.  And  is  appellant  here  to  contend  that  it  has  no  responsibility  for  the  flagrant 
violation  of  the  contract,  which  the  respondent  paid  it  to  make  and  to  keep,  by 
its  sole  representative  appointed  to  keep  it  on  its  behalf?  Like  the  English 
crown,  it  lays  its  sins  upon  its  servants,  and  claims  that  it  can  do  no  wrong.  We 
cannot  bend  down  the  law  to  such  a  convenience.  The  appellant  tortiously 
broke  this  contract  as  surely  as  it  made  it,  —  committed  this  tort  as  surely  as  it 
made  the  contract." 

What  duties,  besides  that  of  transportation  merely,  rest  upon  the  carrier  may 
be  illustrated  by  the  frequently  approved  language  of  an  enlightened  jurist:  "An 
owner  of  a  steamboat  or  railroad,  in  this  respect,  is  in  a  condition  somewhat 
similar  to  that  of  an  innkeeper,  whose  premises  are  open  to  all  guests.  Yet 
he  is  not  onlj^  empowered,  but  he  is  bound  so  to  regulate  his  house,  as  well  with 
regard  to  the  peace  and  comfort  of  his  guests  who  there  seek  repose,  as  to  the 
peace  and  quiet  of  the  vicinity,  as  to  repress  and  prohibit  all  disorderly  conduct 
therein ;  and  of  course  he  has  a  right,  and  is  bound  to  exclude,  from  his  premises 
all  disorderly  persons,  and  all  persons  not  conforming  to  regulations  necessary 
and  proper  to  secure  such  quiet  and  good  order."  ^  An  exemplification  of  these 
remarks  is  found  in  the  rule  which  enjoins  upon  the  carrier  the  duty  of  protect- 
ing the  passengers  from  the  assaults  of  fellow-passengers  or  trespassers  during 
the  subsistence  of  the  contract  of  transportation.^ 

Such  being  the  liability  of  the  carrier  for  the  conduct  of  strangers,  can  it  be 
said  that  he  is  less  responsible  for  acts  of  violence  of  his  own  servants?  A 
fortiori,  it  would  seem  that  he  is  not.^  The  wilfulness  of  the  servant's  act  is 
no  excuse,  so  long  as  it  amounts  to  a  breach  of  the  contract ;  *  nor  the  fact  that 
the  act  is  wholly  disconnected  from  his  duties,  and  a  purely  wanton  assault. 
Thus,  in  Craker  v.  Chicago,  etc.  Bailroad  Company,^  the  defendant's  conductor 
forcibly  seized  and  kissed  a  young  lady  while  a  passenger  on  his  train,  for  which 
act  the  railroad  company  was  held  responsible.  In  Milwaukee,  etc.  Railroad 
Company  v.  Finney,^  it  was  urged  that  in  no  case  could  a  right  of  action  arise 
against  the  principal  for  the  wilful  or  malicious  conduct  of  the  agent,  unless  it 
was  previously  authorized  or  subsequently  ratified  by  him.  The  court  stated 
that,  on  a  careful  examination  of  the  position,  they  were  satisfied  that  it  was 
incorrect ;  that  the  proper  rule  was,  that  where  the  misconduct  of  the  agent 
caused  a  breach  of  the  obligation  or  contract  of  the  principal,  the  principal 
would  be  liable,  whether  such  conduct  be  wilful  or  malicious,  or  merely  negli- 
gent.' 

In  Keene  v.  Lizardi,^  it  was  stated  that  the  owners  of  vessels  carrying  pas- 

1  Shaw,  C.  J.,  in  The  Commonwealth  «.  v.  Billings,  8  Bush,  147.  See  Chap.  VIIL, 
Power,  7  Mete.  596,  601,  Citing  Markham  v.  ante,  where  this  matter  is  considered  at 
Brown,  8  N.  H.  532.  length. 

2  Pittsburgh  etc.  R.  Co.  v.  Hinds,  ante,  p.  a  Goddard  v.  Grand  Trunk  R.  Co.,  57  Me> 
295;  Putnam  v.  Broadway  etc.  R.  Co.,  55  N.  202. 

Y.  108;  Flint  v.  Norwich  etc.  Transp.  Co.,  34  *  Weed  v.  Panama  E.  Co.,  17  N.  Y.  362. 

Conn.  554 ;  s.c.6  Blatchf.  158 ;  Pittsburgh  etc.  6  36  Wis.  657.                 «  10  Wis.  3S8. 

R.  Co.  V.  Pillow,  76  Pa.  St.  510;  New  Orleans  '  See  also  Quigley  v.  Central  Pacific  B. 

etc.  R.  Co.  V.  Burke,  53  Miss.  200;    s.  c.  4  Co.,  11  Nev.  350. 

Cent.  L.  J.  539;  Holly  v.  Atlanta  Street  R.  8  5  La.  431;  s.  c.  6  La.  315.    See  also  Block 

Co.  (Sup.  Ct.  Ga.),  7  Reporter,  460;  Sherley  v.  Bannerman,  10  La.  An.  1;  St.  Amand  «. 


BY   THE    carrier's    SERVANTS.  365 


"Wanton  and  Malicious  Trespasses  of  Servants. 

sengers  for  money  subjected  themselves  to  the  same  responsibility  for  a  breach 
■of  duty  in  their  officers  to  those  passengei-s,  as  they  would  for  their  misconduct 
in  regard  to  merchandise  committed  to  their  care.'  The  case  of  Goddard  v. 
Grand  Trunk  Bailway ''  is  instructive  upon  this  point.  The  plaintiff  having 
surrendered  his  ticket  to  a  brakeman  authorized  to  receive  it,  was  afterwards 
approached  by  the  person  to  whom  he  had  given  it,  and  accused  of  endeavoring 
to  avoid  the  payment  of  his  fare.  Furthermore,  this  employee  began  a  tirade 
of  abusive  language,  which  was  supplemented  by  the  most  atrocious  conduct. 
The  plaintiff,  a  person  in  ill-health,  reclined  in  his  seat,  wholly  unable  to  respond 
to  the  charge  or  make  any  explanation ;  the  servant,  bringing  his  fist  in  close 
proximity  to  the  plaintiff's  face,  shaking  it  violently,  threatened  to  spill  his 
brains  on  the  spot  if  he  opened  his  mouth.  This  extraordinary  exhibition  was 
not  momentary,  but  was  prolonged  for  the  space  of  about  a  quarter  of  an  hour, 
in  the  presence  of  several  passengers  of  both  sexes.  The  ticket  was  subse- 
quently produced  and  identified  by  the  conductor,  to  whom  the  brakeman  had 
delivered  it  only  a  few  moments  before.  At  the  trial,  the  defendants  claimed 
that  they  were  wholly  irresponsible  for  their  servant's  conduct,  on  the  ground 
that  it  was  wilful  and  malicious,  and  wholly  unauthorized  by  them.  But  said 
Walton,  J.:  "The  fallacy  of  this  argument,  when  applied  to  the  common  car- 
rier of  passengers,  consists  in  not  discriminating  between  the  obligation  which 
he  [the  carrier]  is  under  to  his  passenger,  and  the  duty  which  he  owes  a  stranger. 
It  may  be  true  that  if  the  carrier's  servant  wilfully  and  maliciously  assaults 
a  stranger,  the  master  will  not  be  liable;  but  the  law  is  otherwise  when  he 
assaults  one  of  his  master's  passengers.  *  *  *  The  law  seems  to  be  now 
well  settled  that  the  carrier  is  obliged  to  protect  his  passenger  from  violence 
and  insult,  from  whatever  source  arising.  He  is  not  regarded  as  an  insurer  of 
his  passenger's  safety  against  every  possible  source  of  danger;  but  he  is  bound 
to  use  all  such  reasonable  precautions  as  human  judgment  and  foresight  are 
capable  of  to  make  his  passenger's  journey  safe  and  comfortable."  ' 

Lizardi,  4  La.  243.    In  order  to  Justify  the  berlain  v.  Chandler,  3  Mason,  242,  where,  in 

imprisonment  of  a  passenger  on  shipboard  regard  to  the  contract  of  carriage,  he  said: 

'in  the  ground  that  the  measure  was  neces-  "In    respect   to   females,  it   proceeds   yet 

;iry  for  the  due  preservation  of  discipline,  farther;  it  includes  an  implied  stipulation 

it  must  appear  that  there  was    such    real  against  general  obscenity,  that  immodesty 

appearance   of     danger    to   the    di8cii)line  of  approach  which  borders  on  lascivious- 

i)f    the  ship    from    the    language    or    con-  ness,  and  against  that  wanton  disregard  of 

duct   of   the    plaintiff   as    might    induce   a  the  feelings  which  aggravates   every  evil, 

reasonable    man   to    believe   in   the   exist-  and  endeavors  by  the  excitement  of  terror 

ence  of  such  danger.      Aldworth   v.  Stew-  and  cool  malignancy  of  conduct  to  inflict 

art,  4  Fost.  &  Fin.  9.57;  King  v.  Franklin,!  torture    upon    susceptible    minds."    These 

Post.  &  Fin.  .360;  I'rendcrgast  v.  Conipton,  8  views  are  reiterated  by  Clifford,  J.,  in  Nieto 

Car.  &  P.  454.    Conduct  unbecoming  a  gen-  v.  Clark,  1  Cliff.  145. 

tleman  will  justify  the  captain  in  excluding  2  57   Me.  203.    Malecek  v.  Tower  Grove 

a  passenger  from  the  table,  although  he  has  etc.  R.  Co.,  57  Mo.   18,  exhibits   an  almost 

contra(;ted  lor  a  place  at  such  table.    Prea-  identical  stale  of  facts.    See   also  Sherley 

dergast  V.  Compton,»?ipra.  v.  Billings,  8    Bush,  147,  where  Goddard  v. 

'  In  this  case,  the  plaintiff  and  his  wife  Grand  Trunk  Railway  is  expressly  approved, 

were  treated  with  great  indignity  and  insult,  ^  57    Me.  213.    See    also    the    remarks  of 

arising  purely  from  the  malice  of  the  com-  Willard,  J.,  in  Brand  v.  Troy  etc.  U.  Co.,  8 

manding  officer.    The  decision  of  the  court  Barb.  368,  378.    The    same    learned    justice 

was  based  upon  that  of  story,  J.,  in  Cham-  who  expressed  the  enlightened  views  above 


366  ASSAULTS    UPON    PASSENGERS 


Notes. 


The  Supreme  Judicial  Court  of  Massachusetts  have  adopted  the  same  rule,  as 
Avill  be  seen  by  an  examination  of  Bryant  v.  Rich.^  The  servants  of  the  carrier 
in  this  case  assaulted  and  beat  a  passenger  simply  because  he  had  remonstrated 
against  the  t3'rannical  conduct  of  the  servants  of  the  carrier  towards  a  fellow- 
passenger,  his  relative.  The  plaintiff  had  made  no  show  of  force,  and  the  assault 
was  wholly  inexcusable.  After  citing  with  approval  the  case  of  Goddard  v. 
Ch'and  Tnmk  Bailway,^  Chapman,  C.  J.,  continued:  "The  interpretation  of  the 
contract  of  the  carrier  which  is  given  in  the  cases  above  cited  is  not  unreason- 
able. It  is  not  more  extensive  than  the  necessities  of  the  case  require.  Nor  is 
it  difficult  to  perform.  The  cases  in  which  it  is  violated  by  servants,  even  of  the 
lowest  grade,  on  board  a  ship  or  engaged  in  the  management  of  a  railroad  train, 
are  rare,  and  the  carrier,  rather  than  the  passenger,  ought  to  take  the  risk  of 
such  exceptional  cases, — the  passenger  being  necessarily  placed  so  much  within 
the  power  of  the  servants."^  Mr.  Justice  Clifford  reviewed  the  foregoing 
decisions  in  Pendleton  v.  Kinsley,*  and  reached  the  same  conclusion. 

§  2.  Servant  acting  in  the  Scope  of  Ms  Emplo37inent.  —  If  the  carrier  is  to 
be  held  responsible  for  the  wilful,  wanton,  and  malicious  act  of  his  servant 
which  amounts  to  a  breach  of  the  contract  of  carriage,  it  would  seem  to  be 
unnecessary  to  consider  whether,  at  the  time  the  unlawful  act  of  the  ser- 
vant took  place,  he  was  acting  in  the  scope  of  his  employment  and  according 
to  the  instructions  of  his  master ;  also,  whether  the  act  was  in  any  manner  sub- 
sequently ratified  by  the  master.  There  are  many  cases,  however,  which  do  not 
go  to  the  extent  of  declaring  that  the  cai'rier  shall  be  held  responsible  for  the 
wilful  misconduct  of  his  servant  when  his  act  ftiay  be  considered  as  outside  of 
the  legitimate  scope  of  his  duties,  although  if  the  act  could  in  any  manner  be 
imputed  to  the  carrier  personally,  it  would  amount  to  a  breach  of  the  contract  for 
safe  carriage.  Thus,  in  Isaacs  v.  Third  Avenue  BaiJroad  Company,^  the  plaintiff 
came  to  the  rear  platform  of  a  street  car,  and  desired  the  conductor  to  have  the 
car  come  to  a  full  stop  in  order  that  she  might  get  off ;  to  which  request  he 
replied  that  the  car  was  stopped  sufficiently,  although  it  was  yet  in  motion.  The 
plaintiff  told  the  conductor  that  she  would  not  get  off  until  the  the  car  had  com- 
pletely stopped.  Thereupon  the  conductor  seized  the  plaintiff  by  the  shoulder 
with  both  hands,  and  threw  her  out  with  such  violence  that  her  leg  was  broken 
by  her  fall  upon  the  pavement.  The  court  held  that  the  principal  was  not 
responsible  for  this  misconduct  of  its  servant,  and  assigned  as  a  reason,  inter 
alia,  that  "the  defendant  could  not  lawfully  have  done  it,  and  therefore  no 
authority  could  be  implied  in  the  conductor  to  do  it."  The  facility  with 
which  the  Gordian  knot  of  respondeat  superior  is  thus  cleft  to  the  heart  must  be 

set  forth,  again  applied  them  in  the  sub-  yet,  the  struggle  having  ended,  the  company 

sequent  case  of  Hanson  v.  European  etc.  R.  was  to  be  held  responsible  for  the  wanton 

Co.,  62  Me.  84,  where  a  brakeraan,  having  act  of  its  servant  in  renewing  the  strife. 

been   worsted   in  a  difficulty  with  a  pas-  i  106  Mass.  180.                     -  57  Me.  202. 

senger,  after  the  quarrel  had  ended  came  »  loe  Mass.    189.     See    also   the    case   of 

up  from  behind  and  inflicted  several  blows  Ramsden  v.  Boston  etc.  R.  Co.,  104  Mass. 

upon  the    passenger's    head  with  an    iron  117. 

Btove-poker.    The  court  held  that  although  *  3  Cliflf.  416,  ante,  p.  352. 

the   brakeman  was  obstructed  in  the  per-  &  47  N.   Y.  122.    See  also  Evansville  etc. 

formance  of  his  duty  in  the  first  instance,  R.  Co.  v.  Baum,  26  Ind.  70. 


BY    THE    carrier's    SERVANTS.  367 


Servant  when  acting  within  the  Scope  of  his  Employment. 

startling  to  even  the  superficial  thinker.  If  we  are  to  assume  that  a  corporation 
can  do  no  wrong,  then  it  would  seem  to  be  useless  to  discuss  whether  the 
wrongs  of  its  agents  can  be  imputed  to  it. 

In  Parker  v.  Ene  Bailroad  Company,^  a  conductor  upon  one  of  the  defendant's 
trains  took  up  the  tickets  of  the  plaintiff  and  his  wife,  telling  them  that  the  train 
did  not  generally  stop  at  their  destination,  but  that  on  that  occasion  it  probably 
would  do  so,  to  take  in  water.  The  train  did  not  stop  as  conjectured,  and  after 
it  had  gone  by  the  plaintiff's  destination  the  conductor  came  into  the  car  where 
the  plaintiff  and  his  wife  were  and  used  abusive  language  to  him.  The  court 
held  that  while  so  doing  he  was  not  in  the  performance  of  his  duties,  and  there- 
fore the  corporation  could  not  be  held  liable ;  saying  at  the  same  time  that  if  the 
words  had  been  uttered  in  the  first  instance  while  the  conductor  was  taking  the 
tickets,  the  decision  would  have  been  otherwise.  This  distinction  appears  to  be 
entirely  destitute  of  force.  In  a  Kentucky  casCj^the  clerk  of  the  defendant's  steam- 
boat was  collecting  fares  from  deck-passengers.  The  plaintiff  had  just  paid  his 
fare,  when  the  clerk  charged  him  with  having  hidden  in  order  to  evade  paj-ment, 
and  immediately  afterwards  assaulted  him,  putting  out  one  of  his  eyes.  The 
defendant  was  held  to  be  responsible  for  this  conduct,  the  court  saying  in  regard 
to  the  "scope  of  emplojTnent:  "  "It  must  be  borne  in  mind  that  from  the 
moment  the  contract  between  the  carrier  and  passenger  begins,  until  it  ends> 
the  official  actions  of  the  officers  of  the  boat,  touching  the  payment  of  passage- 
money,  or  the  manner  in  which  the  passengers  shall  conduct  themselves,  or  the 
enforcement  of  the  regulations  prescribed  for  the  government  of  the  vessel,  — 
in  short,  all  intercourse  between  the  officers  and  passenger  naturally  and  legiti- 
mately growing  out  of  the  relationship  existing  between  them,  —  may  properly 
be  said  to  come  within  the  course  of  their  employment,  and  their  actions  in  the 
premises,  if  legal  and  proper,  are  within  the  scope  of  their  authority."  ^ 

Other  New  York  cases,  decided  before  and  since  the  decision  of  the  Court  of 
Appeals  in  Isaacs  v.  Third  Avenue  Bailroad  Company,*  and  that  of  the  Supreme 
Court  in  Parker  v.  Erie  Bailroad  Company,''  are  plainly  irreconcilable  with  these 
cases.*  A  labored  effort  was  made  by  the  court,  in  a  subsequent  case,''  to  distin- 
guish the  case  of  Isaacs  v.  Third  Avenue  Bailroad  Company.  A  contrary  conclu- 
sion, however,  was  reached  upon  identical  facts.  The  latest  decisions  of  the 
Court  of  Appeals  are  quite  satisfactory  upon  the  liability  of  the  master  for  the  tor- 
tious acts  of  his  servant.  Bounds  v.  Delaware,  etc.  Bailroad  Company^  will 
probably  be  hereafter  regarded  as  a  leading  case  upon  this  subject.  The  plaintiff 
in  this  case,  a  boy  twelve  years  of  age,  jumped  upon  the  platform  of  a  baggage- 
car  on  the  defendants'  road,  intending  to  ride  to  a  place  where  the  cars  were 
being  backed  to  make  up  a  train.  The  defendants'  rules  forbade  all  persons, 
except  certain  employees,  riding  on  baggage-cars,  and  directed  baggagemen  to 
rigidly  enforce  the  rule.  As  the  plaintiff  's  evidence  tended  to  show,  the  defend- 
ants' baggageman  ordered  him  off  while  the  car  was  in  motion.    Wood  was 


I  6  Hnn,  67.  46  N.  T.  23;  Jackson  v.  Second  Avenue  R. 

»  Sherley  v.  Billings,  8  Bush,  U7.  Co.,  47  N.  Y.  274 ;  Meyer  v.  Second  Avenue  R. 

8  Id.  153.  Co.,  8  Bosw.  305 ;  Weed  v.  Panama  E.  Co.,  17 

*  Supra.                          6  Supra.  N.  Y.  362. 

•  Sandford  v.  Eighth  Avenue  R.  Co.,  23  N.  •  Shea  v.  Sixth  Avenue  R.  Co.,  62  N,  Y.  180. 
Y.  343;  Higgins  v.  Watervliet  Turnpike  Co.,  s  64  jj.  y.  129;  «.  c.  3  Hun,  329. 


3G8  ASSAULTS    UPON    PASSENGERS 


Notes. 


piknl  aloiiii  the  track  for  a  distance  of  over  one  hundred  feet,  and  it  was  at  this 
phice  that  the  plaintiff  was  ordered  to  get  off.  The  plaintiff  replied  to  this 
demand,  "I  can't, — the  wood  is  right  here;  I  want  you  to  help  me,"  and 
thereupon  the  baggageman  kicked  him  off.  The  plaintiff  fell  against  the  wood 
and  rolled  back  under  the  car,  the  wheel  of  which  passed  over  and  crushed  his 
leg.  The  defendants  were  held  liable  for  this  injury.  Ajstdkews,  J.,  stated  the 
law  to  be  as  follows :  — 

"It  is,  in  general,  sufficient  to  make  the  master  responsible  that  he  gave  to  the 
servant  an  authority  or  made  it  his  duty  to  act  in  respect  to  the  business  in 
which  he  was  engaged  when  the  wrong  was  committed,  and  that  the  act  com- 
plained of  was  done  in  the  course  of  his  employment.  The  master,  in  that  case, 
will  be  deemed  to  have  consented  to  and  authorized  the  act  of  the  servant,  and 
he  will  not  be  excused  from  liability  although  the  servant  abused  his  authority, 
or  was  reckless  in  the  performance  of  his  duty,  or  inflicted  an  unnecessary 
injury  in  executing  his  master's  orders.  The  master  who  puts  the  servant  in  a 
place  of  trust  or  responsibility,  or  commits  to  him  the  management  of  his  busi- 
ness or  the  care  of  his  property,  is  justly  held  responsible  when  the  servant, 
through  lack  of  judgment  or  discretion,  or  from  infirmity  of  temper,  or  under 
the  infliuence  of  passion  aroused  by  the  circumstances  and  the  occasion,  goes 
beyond  the  strict  line  of  his  duty  or  authority,  and  inflicts  an  unjustifiable  injury 
upon  another."  1    These  views  were  reiterated  in  a  subsequent  case.'' 

It  will  be  noticed  that  in  the  case  in  which  the  above  language  was  used  the 
plaintiff  was  a  trespasser,  but  this  circumstance  did  not  prevent  a  recovery.  If 
the  law  is  such  in  regard  to  the  conduct  of  a  carrier's  employees  towards  strangers 
and  trespassers,  it  would  seem  clear,  upon  principle,  that  the  measure  of  respon- 
sibility of  the  master  for  the  tortious  conduct  of  his  servant  towards  those 
whom  he  has  contracted  to  protect  must  be  judged  by  a  higher  standard  even, 
and  therefore  ought  to  include  a  liability  for  assaults  of  every  description  upon 
passengers. 

There  is  an  obiter  dictum  in  a  Missouri  case '  indicating  an  adherence  to  the 
same  objectionable  views  enunciated  in  the  New  York  case  we  have  noticed. 
The  court  said  in  this  case:  "If  the  conduct  of  this  driver  were  wilful  and 
malicious,  with  intent  to  injure  the  plaintiff,  he  might  be  liable  to  indictment  for 
assault  with  intent  to  kill,  or  some  other  criminal  offence ;  but  his  employer  was 
not  responsible  for  his  crimes,  nor  liable  for  his  acts  of  wilful  and  malicious 
trespass.  The  company  was  answerable  only  for  his  negligence,  or  his  incapac- 
ity or  unskilfulness  in  the  performance  of  the  duties  assigned  to  him."  * 

>  e4  \.  Y.  134.  etc.  R.  Co.,  36  Wis.  657,  669:    "It  would  be 

*  Cohen  v.  Dry  Dock  etc.  R.  Co.,  69  N.  Y.  cheap  and  superficial  morality  to  allow  one 

170;  s.  c.  8  Jones  &  Sp.  368.  owing  a  duty  to  another  to  commit  the  per- 

3  McKeon  v.  Citizens'  R.  Co.,  43  Mo.  79.  formance  of  his  duty  to    a  third,  without 

See  also  Evansville  etc.  R.  Co.  v.  Baum,  26  responsibility  for  the  malicious  conduct  o: 

Ind.  70;  Great  Western  R.  Co.  v.  Miller,  19  the  substitute  in  performance  of  the  duty. 

Mich.  305;  Priest  v.  Hudson  etc.  R.  Co.,  40  If  one  owe  bread  to  another,  and  appoint  an 

How.  I'r.  4.56.  agent  to  furnish  it,  and  the  agent,  of  malice, 

<  42  Mo.  88.   The  case  of  Malecek  r.  Tower  fui-nish  a   stone    instead,    the  principal   is 

Grove  etc.  R.  Co.,  57  Mo.  17,  would  seem  to  responsible  for  the   stone    and    its    conse- 

have  been  decided  on  a  principle  quite  tlie  quences.    In    such    cases    malice   is    negli- 

reverse  of   the   above.     Compare    also  the  gence.    Courts  are  generally  incliningto  this 

language  of  Ryan, C.  J.,in  Craker  i>.  Cliicago  view,  and  thi'j  ci>art  long  since  .affirmed  it." 


BY    THE    carrier's    SERVANTS.  369 


Servant  when  acting  within  the  Scope  of  his  Emplo5'ment. 

It  is  sometimes  stated  that  "  when  the  sen-ant  acts  within  the  scope  of  his 
employment,  and  is  engaged  in  the  business  of  the  corporation,  —  in  other  words, 
doing  wliat  he  is  employed  to  do,  —  and  violates  the  rights  of  a  passenger,  there  is 
no  valid  reason  why  the  corporation  should  not  be  held  responsible  for  his  acts, 
simply  because  such  servant  acted  wilfully,  wantonly,  or  maliciously  in  the  com- 
mission of  the  act."  ^  This  would  seem  to  be  undoubtedly  good  law,  as  it  is 
consonant  with  the  well-recognized  principle  that,  even  as  between  the  principal 
and  the  community  at  large,  a  master  will  be  responsible  for  the  unlawful  man- 
ner in  which  the  servant  executes  his  master's  business.^  Furthermore,  it  is 
entirely  in  harmony  with  the  position  towards  which  authorities  of  late  seem  to 
tend,  —  that  the  carrier  is  responsible  for  the  wilful,  wanton,  or  malicious  con- 
duct of  his  servant  towards  a  passenger,  whether  acting  in  the  scope  of  his  em- 
ployment or  not.* 

The  conductor  of  a  railroad  train,  from  the  necessity  of  the  case,  represents  the 
corporation  in  the  control  of  the  engine  and  cars,  the  regulation  of  the  conduct 
of  passengers  as  well  as  of  the  subordinate  servants  of  the  corporation,  and  the 
collection  of  fares.  To  him  is  intrusted  the  discretion  to  be  exercised  in  the 
ejection  of  passengers  and  others.*  In  Thorpe  v.  New  York,  etc.  Bailroad 
Company,'^  the  defendant  entered  into  a  contract  with  a  proprietor  of  drawing- 
room  cars,  by  which  the  latter  agreed  to  place  upon  the  defendant's  road  certain 
drawing-room  cars  at  his  own  expense,  and  keep  the  interiors  thereof  in  good 
order,  the  conductors  and  porters  of  the  same  being  paid  by  the  proprietor  of 
the  cars,  but  carried  by  the  defendant  free  of  expense.  The  defendant's  conduc- 
tors had  the  right  to  enter  the  car  for  any  purpose  connected  with  the  man- 
agement of  the  train,  for  the  collection  of  fares,  and  to  the  assistance  of  the 
conductors  and  porters  of  these  cars  in  enforcing  good  order,  but  for  no  other 
purpose.  In  consideration  of  the  hauling  and  making  of  certain  repairs  on  such 
cars,  the  defendant  received  twenty  per  cent  of  the  gross  receipts  from  them. 
In  an  action  by  the  plaintiff  against  the  defendant  for  an  alleged  wrongful 
removal  from  the  drawing-room  car  by  the  porter  of  the  same,  it  was  held  that 
the  defendant  was  liable  for  any  injuries  sustained  by  him.®  In  Bayley  v.  Man- 
chester, etc.  Bailway  Company,''  it  was  held  that  a  principal  who  puts  his  ser. 
vant  in  his  place  to  do  a  class  of  acts  in  his  absence  necessarily  leaves  him  to 
determine,  according  to  the  circumstances  which  arise,  when  an  act  of  that  class 
is  to  be  done,  and  trusts  him  for  the  manner  in  which  it  is  to  be  done ;  consequently 
he  is  answerable  for  the  wrong  of  the  person  so  intrusted,  either  in  the  manner 
of  doing  such  an  act,  or  in  doing  it  under  circumstances  which  do  not  justify  it, 

>  Quigley  v.  Central  Pacific  R.  Co.,  11  Nev.  p.  352;  Craker  v.  Chicago  etc.  R.  Co.,  "6  Wi.". 

3.50,  363;    Atlantic    etc.  R.  Co.  v.   Dunn,  19  657;  Bryant  v.  Rich,  106  Mass.  180;  Sherley 

Ohio  St.  lG-2;  Passenger  R.  Co.  v.  Young,  21  v.  Bilhngs,  8  Bush,  117;  Goddard  v.  Grand 

Ohio  St.  51S;  Indianai)olis  etc.  R.  Co.  v.  An-  Trunli  R.  Co.,  57  Me.  202. 
thony,  43  Tnd.  183;  Jeffersonville  etc.  R.  Co.  ■•  Indianapolis  etc.  R.  Co.  v.  Anthony,  43 

r.  Rogers,  38  Ind.  IIG;   llewett  v.  Swift,  3  Ind.  188;  Jeffersonville  R.  Co.  v.  Rogers,  38 

Allen,  420;  Pittsburgh  etc.  R.  Co.  v.  Slusser,  Ind.  116;  O'Brien  v.  Boston  etc.  R.  Co.,  ante, 

19  Ohio  St.  157;  New  Orleans  etc.  R.  Co.  v.  p.  22;  Travers  v.  Kansas   etc.  R.  Co.,  63  Mo. 

Hurst,  36  Miss.  660;  McKinley  v.  Chicago  etc.  421 ;  I'.altimore  etc.  R.  Co.  v.  Blocher,  27  Md. 

R.  Co.,  44  Iowa,  314 ;  Pittsburgh  etc.  R.  Co.  v.  277;  Brown  v.  Hannibal  etc.  R.  Co.,  66  Mo. 

Theobald,  51  Ind.  246.  588.  '•>  13  Hun,  70. 

2  2  Thomp.  on  Neg.,  p.  884.  "  Sec  also  Kinsley  v.  Lake  Shore  etc.  R. 

»  Pendleton  v.  Kinsley,  3  Cliff.  316,  ante,  Co.,  125  Mass.  54.  '  L.  R.  7  C.  P.  415, 

24 


370  ASSAULTS    UPON    PASSENGERS 


Notes. 


provided  the  act  was  not  one  of  caprice  on  the  part  of  the  servant,  but  in  the 
course  of  the  emploAHTient.  The  facts  of  the  case  were  that  the  plaintiff,  a  pas- 
seuirer  on  the  defendants'  line  of  railroad,  was  violently  pulled  out  of  a  railway- 
coach  by  one  of  the  defendants'  porters,  who  acted  under  a  mistaken  impression 
that  the  plaintiff  was  in  the  wrong  coach.  It  was  held  that,  although  the  porter 
was  not  expressly  authorized  to  remove  any  person  in  the  wrong  coach,  yet  such 
an  act  was  properly  within  the  scope  of  his  employment,  and  for  the  wTongful 
exercise  of  which  the  company  were  responsible.'  Similarly,  a  person  employed 
by  a  railroad  company  to  clean  their  cars  at  the  terminus  of  the  line,  and  to  keep 
persons  out  of  the  same  while  in  the  discharge  of  that  duty,  was  held  to  be 
acting  within  the  scope  of  his  employment,  and  the  company  accordingly  liable 
for  the  injury  which  ensued,  when,  for  the  purpose  of  excluding  a  boy  who  hatl 
got  upon  the  steps  of  a  car  while  in  motion,  he  kicked  the  boy's  hand,  which 
was  grasped  about  a  railing,  thereby  loosening  his  hold  and  causing  him  to  fall 
between  the  cars,  whereby  he  was  killed.^  In  Indianapolis,  etc.  Railroad  Com- 
pany V.  Anthony,'^  it  was  held  that  an  act  of  the  servant  may  be  within  the  scope 
of  his  employment  although  unnecessary  to  the  performance  of  the  master's 
service  and  not  intended  for  that  purpose.  The  case  of  Malecek  v.  Tower  Grove, 
etc.  Railroad  Company  *  shows  conduct  on  the  part  of  the  servant  which  would 
probably  have  been  considered  not  within  the  scope  of  his  employment  but  for 
the  subsequent  ratification  of  the  servant's  acts  by  the  company  employing  him. 
The  facts  of  this  case  are  almost  identical  with  those  in  Qoddard  v.  Grand  Trunk, 
etc.  Railway  Company.^  In  Dreio  v.  Sixth  Avenue  Railroad  Company,  it  was  held 
that  the  driver  of  a  street  car,  in  assisting  passengers  to  get  on  board,  acts  in  the 
course  of  his  employment,  and  makes  the  principal  liable  for  negligence  in  so 
doing.fi  In  Little  Miami,  etc.  Railroad  Company  v.  Wetmore,'  the  facts  were  that 
the  plaintiff,  after  purchasing  a  ticket  as  a  passenger,  applied  to  the  defendant's 
baggageman  to  have  his  baggage  checked  to  his  destination,  and  by  his  import- 
unate conduct  and  abusive  language  provoked  a  quarrel,  in  which,  to  gratify  his 
personal  resentment,  the  servant  struck  the  plaintiff  with  a  hatchet.  It  was  held 
that  this  >vrongful  act  could  not  be  regarded  as  done  in  the  execution  of  the 
sen-ice  for  which  he  was  engaged. «  It  was  held  in  the  Exchequer  Chamber  that 
the  fact  that  a  passenger  in  an  omnibus  is  struck  by  the  driver's  whip  is  prima 
facie  evidence  of  negligence  by  the  driver  in  the  course  of  his  employment;  and 
even  if  it  appears  that  the  blow  was  struck  at  the  employee  of  another  omnibus 
line,  with  whom  there  had  been  a  dispute,  and  who  had  jumped  on  the  omnibus 
step,  it  is  a  question  for  the  jury  whether  the  blow  was  struck  by  the  driver  in 
private  spite  or  in  supposed  furtherance  of  his  employer's  interests.^ 

1  This  decision  was  afterwards  affirmed  the  owner  of  a  steamboat  carrying  a  slave 

in  the  Exchequer  Chamber.    L.  R.  8  C.  P.  as  a  passenger  was  held  to  be  not  liable  for 

148.    See  also  Peck  v.  New  York  etc.  R.  Co.,  an  injury  done  to  the  slave  by  the  accidental 

70  N.  Y.  587;  s.  c.  6  Thomp.  &  C.  436;  Mc-  discharge  of  a  gun  in  the   hands  of  a  fi-ee 

Kinley  v.  Chicago  etc.  R.  Co.,  44  Iowa,  314.  negro  who  was  employed  as  a  servant  on 

-  Northwestern  R.  Co.  v.  Hack,  66  111.  238.  the  boat,  the  free  negro  and  the  slave  being 

See  also  Healey  v.  City  Passenger  R.  Co.,  28  at  the  time  of  the  accident  on  board  a  lighter 

Ohio  St.  23;  Pennsylvania  R.  Co.  v.  Vandiver,  alongside  the  boat,  the  former  being  at  that 

42  Pa.  St.  365;  Holmes  v.  Wakefield,  12  Allen,  time  engaged  in  no  occupation  pertaining  to 

580;  Ileuett  v.  Swift,  3  Allen,  420.  his  employment. 

3  48  Ind.  183.        1  57  Mo.  18.       &  Supra,  §  1.  '■>  Ward  v.  General  Omnibus  Co.,  42  L.  J. 

e  26  N.  Y.  49.                     v  19  Ohio  St.  110.  (C.  P.)  265;  s.  c.  28  L.  T.  (N.  s.)  850  (affirming 

8  In  McClenaghan  v.  Brock.  5  Rich   L.  17.  21  Wei-V.  Rep.  :?.>)«:  27  L.  T.  (N.  s.)  761'>. 


BY    THE    carrier's    SERVANTS.  i^^l 


Authority  of  Servant  to  make  Arrests. 


The  plaintiff,  while  travelling  in  a  buggy,  was  stopped  by  a  blockade  of 
vehicles,  the  rear  of  his  buggy  resting  across  the  defendant's  street-car  track. 
While  in  this  position  and  unable  to  extricate  himself,  the  defendant's  street  car 
came  up  and  the  plaintiff  was  ordered  to  get  off  the  track.  The  plaintiff 
explained  his  inability  to  do  so,  but  the  driver  of  the  car,  with  an  exhibition  of 
passion  and  threats  of  injury,  drove  his  team  on  and  upset  the  plaintiff's  buggy. 
In  an  action  for  damages,  it  was  held  that  the  facts  of  the  case  did  not  warrant  a 
finding,  as  a  matter  of  law,  that  the  act  of  the  car-driver  was  with  a  view  to 
injure  the  plaintiff,  and  not  to  execute  his  master's  business.^  In  Limpus  v. 
London  General  Omnibus  Company,"^  the  driver  of  the  defendants'  omnibus  drove 
it  across  the  road  in  front  of  a  rival  omnibus  belonging  to  the  plaintiff,  which 
was  thereby  overturned.  In  an  action  against  the  defendants,  the  driver  of  the 
omnibus  stated  that  he  pulled  across  the  plaintiff's  omnibus  to  prevent  it  passing 
him.  The  defendants  had  given  instructions  to  their  driver  not  to  obstruct  any 
omnibus.  The  jury  were  instructed  that  if  they  believed  that  the  defendants' 
driver,  being  dissatisfied  and  irritated  with  the  plaintiff 's  driver,  acted  recklessly, 
wantonly,  and  improperly,  but  in  the  course  of  the  service  and  employment,  and 
doing  that  which  he  believed  to  be  for  the  interest,  of  the  defendants,  they  were 
responsible ;  that  if  the  act  of  the  defendants'  driver,  although  a  reckless  driving 
on  his  part,  was  nevertheless  an  act  done  by  him  in  the  course  of  his  service, 
and  to  do  that  which  he  thought  best  to  suit  the  interest  of  his  employers,  and 
so  to  interfere  with  the  trade  and  business  of  the  other  omnibus,  the  defendants 
were  responsible;  that  the  instructions  given  to  the  defendants'  driver  were 
immaterial  if  he  did  not  pursue  them ;  but  if  the  act  of  the  defendants'  servant 
was  an  act  of  his  oviTi,  and  in  order  to  effect  a  purpose  of  his  ovm,  the  defendants 
were  not  responsible.    This  direction  was  held  to  be  right. 

§  3.  Authority  of  Servants  of  Carrier  to  make  Arrests.  —  It  has  been  decided 
in  this  country  and  in  England,  that,  in  the  absence  of  authority  in  the  by-laws 
of  a  railroad  company,  and  directions  to  the  servants  to  execute  such  by-laws, 
the  arrests  which  employees  of  a  company  happen  to  make  while  engaged  in 
their  duties  cannot  be  considered  as  acts  within  the  scope  of  their  employment, 
and  therefore,  in  case  the  arrest  is  unjustifiable,  no  resort  can  be  had  to  the 
company  for  damages.' 

In  Edwards  v.  London,  etc.  Railway  Company,^  the  question  was  decided  for 
the  first  time.  The  facts  were  that  the  foreman-porter  of  the  defendant's  rail- 
way, who,  in  the  absence  of  the  station-master,  was  in  charge  of  the  station, 
gave  into  custody  the  plaintiff,  whom  he  suspected  to  be  stealing  the  company's 
property.     Having  been  acquitted  of  this  charge,  he  brought  suit  against  the 

1  Cohen  v.  Dry  Dock  etc.  R.  Co.,  69  N.  Y.  a  Commissioner  of  the  United  States,  he  was 

170.  Compare  Whitakerv.  Eighth  Avenue  R.  discharged,  for  the  reason   that   sufficient 

Co.,  51  N.  Y.  295.  evidence  was  not  adduced  to  hold  him.    In 

s  1  Hurl.  &  Colt.  526.  an  action  against  tlie  company  for  this  arrest 

8  In  Porter  r.  Chicago  etc.  R.  Co.,  41  Iowa,  and  assault,  it  was  held  that,  in  the  absence 

858,  the  employees  of  a   railway  company  of  any  other  authority   from  the  company 

Baw  obstructions  upon   the  track,  and   the  than  that  to  be  implied  from  the  mere  rela- 

plaintitf  running  from  the  place.    The  train  tion  of  employerand  emplojee,  the  company 

was  stopped,  and  the  plaintitf  pursued  and  was  not  liable  for  the  act.    See  also  Mali  v. 

taken  into  custody.    On  examination  before  Lord.  39  N.  Y.  381.  <  L.  R.  5  C.  P.  445. 


372  ASSAULTS    UPON    PASSENGERS 


Notes. 


company  for  the  arrest.  In  regard  to  this  suit,  Keating,  J.,  said :  "  There  is  no 
evidence  in  the  case  of  anything  like  express  authority  being  given  by  the 
defendants  to  Holmes,  [the  foreman]  and  if  there  is  any  evidence  to  fix  the 
defendants,  it  must  be  upon  an  implied  authority  resulting  from  Holmes's  posi- 
tion as  their  servant ;  and  that  raises  broadly  the  question  whether  a  person  in 
the  position  of  Holmes  has  implied  authority  to  give  into  custody  any  one  vphom 
he  suspects  to  liave  stolen  his  master's  goods.  I  think  there  is  no  such  implied 
authority.  It  is  admitted  that  the  point  is  new,  and  that  there  is  no  case  in 
which  such  an  authority  has  been  assumed  to  exist.  The  cases  that  have  been 
referred  to  in  support  of  the  contention  are  cases  where  a  company  has  made 
by-laws,  and  an  act  of  Parliament  has  given  authority  to  the  company's  servants 
to  apprehend  persons  committing  offences  against  the  by-laws.  It  has  been  held 
that,  under  such  circumstances,  the  servant  may  be  considered  to  have  authority 
to  enforce  the  by-laws,  and  to  do  whatever  is  necessary  for  that  purpose.  That 
is  the  limit  to  which  the  cases  have  gone ;  and  it  seems  to  me  that  it  would  be 
carrjing  the  doctrine  much  further  to  hold  that  the  defendants  were  liable  in 
this  case.  There  seems  no  ground  for  saying  that  what  was  done  was  in  the 
ordinary  course  of  business  of  the  company,  nor  that  it  was  for  their  benefit, 
except  in  so  far  that  it  is  for  the  benefit  of  all  the  queen's  subjects  that  a  crim- 
inal should  be  convicted.  If  Holmes  acted  from  a  sense  of  the  duty  which  rests 
on  every  one  to  give  in  charge  a  person  whom  he  thinks  is  committing  a  felony, 
his  conduct  would  in  no  way  be  connected  with  the  defendants."  i 

The  foregoing  decision  was  subsequently  reviewed  and  its  authority  afiirmed 
in  Allen  v.  London,  etc.  Bailway  Company,'^  in  which  it  was  held  that  a  clerk  of 
a  railway  company,  whose  duty  it  is  to  issue  tickets  to  passengers  and  receive 
money,  in  the  absence  of  express  authority  has  no  implied  authority  from  the 
company  to  give  into  custody  a  person  whom  he  suspects  to  have  attempted  to 
rob  the  company's  money-drawer,  after  the  attempt  has  ceased.* 

The  matter  of  arrests  for  non-payment  of  fare  is  regulated  by  statute  in 
England.*    Prior  to  the  passage  of  the  Companies  Clauses  Consolidation  A.ct, 

1  L.  R.  5  C.  P.  448.  of  the  company  or  such  other  company  or 

s  L.  R.  6  Q.  B.  65.  party  as  aforesaid,  and  all  constables,  gaol- 

8  Lord  Blackbiu-n  was  inclined  to  think  ers,  and  peace-otHcers,  may  lawfully  appre- 

that  if  robbery  was  going  on,  and  could  not  hend  and  detain  such  person  until  he  can 

be  prevented  except  by  giving  the  robbers  conveniently  be  taken  before  some  justice, 

into  custody,  or  if  the  clerk  had  reason  to  or  until  he  be  otherwise  discharged  by  due 

believe  that  money  had  actually  been  stolen,  course  of  law. 

and  he  could  get  it  back  by  taking  the  thief  "  §  154.    It  shall  be  lawful  for  any  officer 

into  custody,  and  did  so  for  that  purpose,  or  agent  of  the  company,  and   all   persons 

that  might  be  within  the  authority  of  the  called  by  him  to  his  assistance,  to  seize  and 

person  in  charge  of  the  money-drawer.    On  detain  any  person  who  shall  have  committed 

this  point  see  Van  Den  Eynde  v.  Ulster  R.  any  offence  against  the  provisions  of  this 

Co.,  Irish  Rep.  5  C.  L.  6.  or  the  special   act,  and  whose  name  and 

*  Companies  Clauses  Consolidation  Act,  residence  shall  be  unknown  to  such  oflUcer 

8  Vict.,  c.  20,  §  103.    See  this  section  set  out  or  agent,  and    convey  him   with    all   con- 

at  length  in  the  previous  chapter,  §  2.  venient  dispatch  before  some  justice,  with- 

"  §  104.    If    any    person    be    discovered,  out  any  warrant  or  other  authority  than  this 

either  in  or  after  committing,  or  attempting  or  the  special   act;  and  such  justice  shall 

to  commit,  any  such  offence  as  in  the  pre-  proceed  with  aU  convenient  dispatch  to  the 

ceding   enactment    mentioned,  all    officers  hearing  and  determining  of  the  complaint 

and  servants  and  other  persons  on  behalf  against  such  offender." 


BY   THE    carrier's    SERVANTS.  '6Td 


Servant  using  Excessive  Force. 


provisions  in  regard  to  the  arrest  of  passengers,  similar  to  those  of  the  general 
act,  were  embraced  in  private  acts  incorporating  raiiway  companies. ^  By-laws 
framed  under  the  provisions  of  the  statute  have  for  their  primary  object  the 
protection  of  the  company's  interests ;  and,  therefore,  when  the  company  leave  a 
servant  in  charge  of  a  station,  he  has  implied  authority  to  decide  whether  the 
by-law  shall  be  enforced. ^  But  if  the  servant,  in  making  an  arrest,  exceeds  the 
powers  granted  to  the  company  itself  in  this  particular,  the  act  will  be  regarded 
as  beyond  the  scope  of  his  employment,  and  the  company  will  not  be  liable. 
Thus,  in  Poulton  v.  London,  etc.  Bailway  Company,^  the  plaintiff,  having  taien 
a  horse  by  the  defendants'  railway  to  an  agricultural  show,  was  entitled,  under 
arrangements  advertised  by  the  defendants,  to  take  the  horse  back  free  of  charge, 
on  the  production  of  a  certificate.  The  plaintiff  accordingly  produced  such  certifi- 
cate, and  the  horse  was  put  into  a  box.  The  plaintiff  took  a  ticket  for  himself, 
and  proceeded  by  the  same  train.  At  the  end  of  the  journey  the  station-master 
demanded  payment  for  the  horse,  which  the  plaintiff  refusing  to  pay,  he  was 
detained  in  custody  by  two  policemen,  under  the  orders  of  the  station-master,  until 
it  was  ascertained  by  telegraph  that  all  was  right.  In  an  action  for  this  assault 
and  imprisonment,  it  was  held  that  though  a  railway  company  had  power  to  appre- 
hend a  person  for  not  paying  his  own  fare,  yet  in  regard  to  goods  it  had  power 
only  to  detain  them  for  non-payment  of  freight ;  consequently,  as  the  defendants 
themselves  would  have  had  no  power  to  detain  the  plaintiff  on  the  assumption 
that  he  had  wrongfully  taken  the  horse  by  the  train  without  paying,  there  co«ld 
be  no  authority  implied  from  them  to  the  station-master  to  detain  the  plaintiff 
on  this  assumption,  and  they  were  therefore  not  liable  for  this  act  of  the  station- 
master. 

In  Walker  v.  South-Eastern  Bailway  Company,^  it  was  held  that  if  the  servant 
acts  contrary  to  the  regulations  of  the  company  in  making  an  arrest,  the  conduct 
of  the  servant  cannot  be  imputed  to  the  company  and  it  will  not  be  responsible ; 
therefore,  where  the  regulations  of  the  company  and  instructions  to  its  consta- 
bles authorized  the  arrest  of  any  one  whom  they  might  see  committing  an  assault, 
for  the  purpose  of  putting  an  end  to  the  affray,  but  prohibited.ari*ests  after  the 
affray  was  at  an  end,  the  company  was  not  chargeable  witii  the  act  of  one  of  its 
constables  in  wrongfully  arresting  the  plaintiff  after  a  scuffle  had  ended.* 

§  4.  Use  ot  Excessive  Force  by  the  Servant  in  the  Execution  of  the  Car- 
rier's Business.  —  It  is  a  familiar  rule  that  the  master  is  responsible  civiliter  for 

1  Chilton  V.  London  etc.  R.  Co.,  16  Mee.  <  L.  R.  5  C.  P.  640;  s.  c.  39  L.  J.  (C.  P.)  346. 
&  W.  212.  6  The  principles  of  the  above  decisions 

2  Goff  V.  Great  Northern  R.  Co.,  3  El.  &  would  seem  to  be  at  variance  with  the  gcn- 
El.  672;  8.  c.  30  L.  J.  (Q.  B.)  148;  Moore  v.  eral  application  of  the  rule  of  respo7ideat 
Metropolitan  R.  Co.,  L.  R.  8  Q.  B.  36;  s.  c.  42  superior.  It  is  familiar  law  that  a  master 
L.  J.  (Q.  B.)  23.  Contra,  it  would  seem,  are  may  be  held  responsible  for  his  servant's 
the  earlier  cases  of  Eastern  Counties  R.  Oo.  conduct,  though  he  acts  contrary  to  his 
V.  Broom,  6  Exch.  314,  and  Roe  v.  Birken-  orders,  or  uses  excessive  force,  or  performs 
head  etc.  R.  Co.,  7  Exch.  36,  referred  to  his  duties  in  a  spirit  of  wantonness.  I'hUa. 
disparagingly  in  Goff  v.  Great  Northern  R.  etc.  R.  Co.  v.  Derby,  ante.  p.  31;  Seymour 
Co.,  mpra,  and  very  unsatisfactorily  distin-  v.  Greenwood,  7  Hurl.  &  X.  3.'>5  (afTirming  s. 
guished  from  the  facts  in  that  case.  c.  6  Hurl.  &  X.  359) ;  I>impus  v.  General  Om- 

3  L.  R.  2  Q.  B.  534.  nibus  Co.,  1  Hurl.  &  Colt.  .'.26. 


374  ASSAULTS    UPON    PASSENGERS 


Notes. 


the  wrongful  act  of  the  servant  causing  injury  to  a  third  person,  whether  the  act 
was  one  of  negligence  or  positive  misfeasance,  provided  the  servant  was  at  the 
time  acting  for  the  master,  and  within  the  scope  of  the  business  intrusted  to 
him ; '  and  that,  too,  although  the  servant  in  doing  it  departed  from  the  instruc- 
tions of  his  master.2  The  foregoing  rule  is  of  general  application,  and  is  true 
whether  the  person  suffering  from  such  wrongful  act  of  the  servant  is  one  to 
whom  the  carrier  owes  a  duty  of  protection,  or  a  member  of  the  community  at 
large,  or  a  trespasser.  Therefore,  the  rule  is  general  that  when  a  master  has 
intrusted  to  his  servant  the  performance  of  a  duty,  he  will  be  liable  as  principal 
for  the  use  of  excessive  force  in  the  performance  of  that  duty.  The  act  of  the 
servant  is  considered  not  the  less  authorized  because  the  authority  conferred 
has  been  abused.  Thus,  in  Bamsden  v.  Boston,  etc.  Bailroad  Company,'^  a  rail- 
road company  was  held  responsible  for  an  assault  by  the  conductor  of  one  of  its 
trains,  in  seizing,  or  attempting  to  seize,  the  property  of  a  passenger  in  pay- 
ment of  his  fare ;  and  in  Passenger  Bailroad  Company  v.  Young,*^  for  violently 
and  unreasonably  expelling  the  plaintiff  and  his  wife  from  a  car  of  the  defend- 
ant's street  railroad. 

A  passenger  who  is  lawfully  upon  a  railroad  train  and  has  paid  his  fare  has 
the  right  to  offer  such  resistance  to  an  attempt  on  the  part  of  the  conductor  to 
remove  him,  especially  when  the  train  is  in  motion,  as  may  be  necessary  to  pre- 
vent his  being  ejected;  and  if,  in  consequence  of  such  resistance,  extraordinary 
force  becomes  necessary  and  is  used  to  remove  him,  and  he  is  injured  thereby, 
he  can  recover  of  the  corporation  for  such  injury.*  In  Peck  v.  New  York,  etc. 
Bailroad  Company,^  a  railroad  corporation  was  held  responsible  for  the  use  of 
excessive  force  by  an  employee  in  resisting  the  efforts  of  the  plaintiff  to  enter 
the  ladies'  car  contrary  to  regulations  which  it  was  admitted  the  defendant  had 
a  right  to  establish  and  enforce. 

In  Seymour  v.  Greenwood,''  the  Court  of  Exchequer  Chamber  held  that  the 
carrier  was  liable  for  an  injury  caused  by  the  needlessly  violent  expulsion  fi'om 
an  omnibus  of  a  person  who  was  drunk,  who  had  refused  to  pay  his  fare,  and  had 
assaulted  the  guard;  and  in  Sanford  v.  Eighth  Avenue  Bailroad  Company,'^  the 
action  was  brought  for  damages  resulting  from  the  death  of  the  plaintiff's  intes- 
tate by  his  being  thrown  from  a  car  of  the  defendant  by  the  conductor  while  the 
car  was  in  motion.    The  deceased  refused  to  pay  his  fare,  and  for  that  reason 

1  Higgins  V.  Watervliet  Turnpike  Co.,  46  »  104  Mass.  117. 

N.  Y.  23 ;  Rounds  v.  Delaware  etc.  R.  Co.,  64  <  21  Ohio  St.  518.    See  also  Turner  v.  North 

X.  Y.  129;  Cohen  v.  Dry  Dock  etc.  R.  Co.,  69  Beach  etc.  R.  Co.,  34  Cal.  594. 

N.  Y.  170;  Pennsylvania  R.  Co.  v.  Vandiver,  »  English  v.  Delaware  etc.  Canal  Co.,  66  N. 

42  Pa.  St.  365;  Sandford  v.  Eighth  Avenue  R.  Y.  454;  s.  c.  4  Hun,  683.    See  also  Sanford  v 

Co.,  23  -V.  Y.  343;  Jackson  v.  Second  Avenue  Eighth  Avenue  R.  Co.,  23  X.  Y.  :?43. 

R.  Co.,  47  N.  Y.  274 ;  Lovett  v.  Salem  etc.  R.  (•  70  X.  Y.  587 ;  «.  c.  6  Thomp.  &  C.  436.    See 

Co.,  9  Allen,  557;  Holmes  v.  Wakefield,  12  also  Bayley  v.  Manchester  etc.  R.  Co.,  L.  R. 

.Vllen,   5S1;    Moore    v.   Fitchburg  R.  Co,  4  7  C.  P.  415  (affirmed  in  Exchequer  Chamber, 

I  .ray,  465;  Xew  Orleans  etc.  R.  Co.  v.  Bailey,  L.  R.  8  C.  P.  148) ;  McKinley  v.  Chicago  etc. 

40  Miss.  4.53;  Ramsden  v.  Boston  etc.  R.  Co.,  R.  Co.,  44  Iowa,  314. 

Iu4  Mass.  117;  Williamson  v.  Grand  Trunk  •  7  Hurl.  &  N.  355;  s.  c.  30  L.  J.   (Exch.) 

R.  Co.,  17  Upper  Canada  C.  P.  615.  327;  9  Week.  Kep.  785;  4  L.  T.   (x.  S.)  833, 

2  Higgins  V.  Watervliet  Turnpike  Co.,  (affirming  s.  c.  6  Hurl.  &  N.  ;?59;  30  L.  J. 
mpra;  PhUa.  etc.  R.  Co.  v.  Derby,  14  How.  (Exch.)  189;  7  Week.  Rep.  785.) 

468 ;  s.  c.  ante,  p.  31.  8  23  N.  Y.  343. 


BY    THE    CARRIER'S    SERVANTS. 


375 


Circumstances  justifying  Expulsion  of  Passenger. 


the  conductor  ejected  him.  The  court  held  that  the  conduct  of  the  intestate 
justified  the  conductor  in  expelling  him  from  the  car  in  a  proper  manner,  but 
not  when  the  car  was  in  motion.  Comstock,  C.  J.,  said:  ^  "The  case  is  there- 
fore to  be  stated  thus :  The  defendants,  by  their  servant,  were  guilty  of  a  personal 
and  intentional  assault  upon  the  intestate.  That  assault,  as  we  think,  was  not 
in  law  justified  by  the  facts,  and  they  are  consequently  without  a  legal  defence. "^ 
In  Bounds  v.  Delaware,  etc.  Bailroad  Company,''^  the  court  said:*  "The  fact 
that  the  plaintiff  was  a  trespasser  on  the  cars  is  not  a  defence.  The  lad  did  not 
forfeit  his  life  or  subject  himself  to  the  loss  of  his  limbs  because  he  was  wrong- 
fully on  the  car.  The  defendant  owed  him  no  duty  of  care  by  reason  of  any 
special  relation  assumed  or  existing  between  the  company  and  him,  but  he  was 
entitled  to  be  protected  against  unnecessary  injury  by  the  defendant  or  its 
servants  in  exercising  the  right  of  removing  him,  and  especially  from  the  unnec- 
essary and  unjustifiable  act  of  the  brakeman,  by  which  his  life  was  put  in  peril 
and  which  resulted  in  his  losing  his  limb."  ^ 

§  5.  Resume  of  tlie  Circumstances  justifying  Ejection  of  Passenger.  —  A 
great  variety  of  circumstances  will  have  this  effect.  The  conduct  of  the  passen- 
ger may  be  in  violation  of  lawful  police  regulations ;  ^  or  he  may  be  a  person 
known  to  be  of  a  disreputable  and  vicious  character,  and  therefore  disentitled 
to  demand  transportation.'  The  passenger  may  refuse  to  exhibit  or  deliver  up 
Ms  ticket  when  properly  requested ;  ®  or  insist  that  he  shall  ride  upon  an  improper 


1  Jd.  346. 

2  If  the  assistants  employed  by  a  con- 
ductor of  a  railroad  train  strike  a  passenger 
unjustifiably  in  expelling  him,  the  corpora- 
tion is  liable,  although  the  blows  were 
struck  against  the  conductor's  order.  Cole- 
man V.  New  York  etc.  R.  Co.,  106  Mass.  160. 

3  64  N.  Y.  129.  -1  Id.  138. 

s  See  also  Healey  v.  City  Passenger  R.  Co., 
28  Ohio  St.  23;  Pennsylvania  R.  Co.  v.  Van- 
diver,  42  Pa.  St.  365 ;  Holmes  v.  Wakefield, 
12  Allen,  .580;  The  State  v.  Ross,  26  N.  J.  L. 
226;  Hewett  v.  Swift,  3  Allen,  420;  North- 
Western  R.  Co.  V.  Hack,  66  111.  238.  The  case 
of  Kline  v.  Central  Pacific  R.  Co.,  37  Cal. 
400  (s.  c.  39  Cal.  ,587),  exhibits  a  state  of 
facts  almost  identical  with  that  of  Rounds  v. 
Delaware  etc.  R.  Co.  In  this  case  it  was 
held  that  proof  that  the  conductrtr  ordered 
the  plaintiff  to  get  off  the  train  while  in 
motion,  and  accompanied  such  order  with  a 
demonstration  of  force  sufficient  to  impress 
him  with  the  belief  that  it  would  be  em- 
ployed, and  thereby  compelled  him  to  jump 
from  the  car,  is  equivalent  to  proof  of  the 
employment  of  actual  force.  See  also 
Brown  V.  Hannibal  etc.  R.  Co.,  66  Mo.  .588; 
Lovett  V.  Salem  etc.  R.  Co.,  9  Allen,  .557. 
But  in  cases  of  this  kind  it  is  necessary  to 
establish  the  fact  that  the  person  committing 
the  assault  is  a  servant  of  the  company. 
The  mere  fact  that  he  declares  himself  to 


be  such  at  the  time  of  the  assault,  does  not 
of  itself  establish  it.  Lindsay  v.  Central  R. 
etc.  Co.,  46  Ga.  447. 

8  Vinton  v.  Middlesex  R.  Co.,  11  Allen, 
304 ;  Pittsburgh  etc.  R.  Co.  v.  Valleley,  32  Ohio 
St.  345;  s.  c.  6  Cent.  L.  J.  277;  Marquette  v. 
Chicago  etc.  R.  Co.,  33  Iowa,  562;  Murphy  v. 
Union  etc.  R.  Co.,  118  Mass.  228;  Chicago  etc. 
R.  Co.  V.  Grifflii,  68  111.  499;  Pittsburgh  etc. 
R.  Co.  V.  Van  Houten,  48  Ind.  90;  Pittsburgh 
etc.  R.  Co.  V.  Vandyne,  57  Ind.  576;  The  State 
V.  Ross,  26  N.  J.  L.  224;  Higgins  v.  Watervliet 
etc.  R.  Co.,46N.  Y.  23. 

'  Thurston  v.  Union  Pacific  R.  Co.,  ante, 
p.  10.  But  see  Coppin  v.  Braithwaite,  8  Jur. 
875,  per  Rolfe,  B. 

8  The  People  v.  Caryl,  3  Park.  Cr.  Cas. 
326;  Baltimore  etc.  R.  Co.  v.  Blocher,  27  Md. 
277;  liibbard  v.  New  York  etc.  R.  Co.,  15  N. 
Y.  455 ;  The  State  v.  Campbell,  .32  N.  J.  L.  309 ; 
Vedder  v.  Fellowes,  20  N.  Y.  126;  Northern 
U.  Co.t;.  Page,  22  Barb.  130;  Illinois  etc.  K.  Co. 
V.  Whittemore,  43  111.  420.  An  unreasonable 
demand  for  the  delivery  of  a  ticket,  and  ex- 
pulsion in  consequence  of  refusal,  on  the 
other  hand,  affords  a  good  cause  of  action 
to  the  passenger.  The  State  v.  Thompson, 
20  N.  11.  251 ;  Pittsburgh  etc.  R.  Co.  v.  Hen- 
nigh,  30  Ind.  .509;  Maples  v.  New  York  etc. 
R.  Co.,  38  Conn.  .557:  Curtis  v.  Grand  Trunk 
etc.  11.  Co.,  12  Upper  Canada  C.  P.  89 ;  Indian- 
apolis etc.  R.  Co.  V.  Milligau,  50  Ind.  392. 


376 


ASSAULTS    UPON    PASSENGERS 


Notes. 


ticket,!  or  a  ticket  the  limitation  of  which  has  expired,^  or  a  ticket  for  which  the 
company  have  received  no  consideration  or  has  been  otherwise  unlawfully  ob- 
tained,3  or  without  any  ticket  whatever,*  or  without  paying  any  fare  whatever,^ 
or  the  fare  which  may  properly  be  demanded;  ^  or  be  guilty  of  a  breach  of  other 
reasonable  regulations  of  the  carrier;'  or  his  conduct  may  amount  to  a  breach 


•  Frederick  v.  Marquette  etc.  R.  Co.,  37 
Mich.  342;  s.  c.  6  Reporter,  116 ;  Pullman  Pal- 
ace-Car Co.  V.  Reed,  75  111.  125;  Jerome  v. 
Smith,  48  Vt.  230;  Chicago  etc.  R.  Co.  v. 
Griffin,  68  111.  499;  Goetz  v.  Hannibal  etc.  R. 
Co.,  50  Mo.  572;  Nolan  v.  New  York  etc.  R.  Co., 
9  Jones  &  Sp.  541 ;  Barker  v.  New  York  etc. 
R.  Co.,  24  N.  Y.  599 ;  s.  c.  sub  nom.  Page  v.  New 
York  etc.  R.  Co.,  6  Duer,  523;  Keeley  v.  Bos- 
tou  etc.  R.  Co.,  67  Me.  163;  s.  c.  6  Cent.  L.  J. 
382 ;  17  Alb.  L.  J.  366 ;  O'Brien  v.  Boston  etc. 
R.  Co.,  ante,  p.  22;  Terre  Haute  etc.  R. 
Co.  V.  Vanatta,  21  111.  188;  Bennett  v.  New 
York  etc.  R.  Co.,  69  N.  Y.  594;  s.  c.  5  Hun, 
599. 

2  Hill  V.  Syi-acuse  etc.  R.  Co.,  63  N.  Y.  101; 
Farewell  v.  Grand  Trunk  etc.  R.  Co.,  15  Up- 
per Canada  C.  P.  427;  Elmore  v.  Sands,  54 
N.  Y.  512;  Barker  v.  Coflin,  31  Barb.  556; 
Boice  V.  Hudson  etc.  R.  Co.,  61  Barb.  611; 
Boston  etc.  R.  Co.  v.  Proctor,  1  Allen,  267; 
Shedd  V.  Troy  etc.  R.  Co.,  40  Vt.  88;  The 
State  V.  Campbell,  32  N.  J.  L.  309;  Wentz  v. 
Erie  R.  Co.,  5  Thomp.  &  C.  556;  s.  c.  3  Hun, 
241;  Nelson  v.  Long  Island  K.  Co.,  7  Hun, 
140;  Briggs  v.  Grand  Trunk  R.  Co.,  24  Upper 
Canada  Q.  B.  510;  Powell  v.  Pittsburgh  etc. 
R.  Co.,  25  Ohio  St.  70;  Sherman  v.  Chicago 
etc.  R.  Co., 40  Iowa, 45;  Lillis  v.  St.  Louis  etc. 
R.  Co.,  64  Mo.  464;  Terre  Haute  etc.  R.  Co.  v. 
Fitzgerald,  47  Ind.  79. 

3  Memphis  etc.  R.  Co.  v.  Chastine,  54  Miss. 
503.  In  this  case  the  ticket  was  purchased 
with  counterfeit  money.  In  McCarthy  v. 
Chicago  etc.  R.  Co.,  41  Iowa,  432,  the  plaintiff 
had  not  procured  a  ticket  previous  to  enter- 
ing the  train,  but  handed  the  conductor  a 
ten-dollar  bill  to  pay  his  fare  of  $6.20.  In 
making  the  change,  the  coQductor  returned 
to  him  .$5  too  much.  The  plaintiff  refused  to 
examine  his  change  to  ascertain  if  the  con- 
ductor's claim  of  mistake  was  correct.  When 
he  had  ridden  as  far  as  $1.20  entitled  him  to 
ride,  he  was  directed  to  leave  the  train,  and 
did  so.  It  was  held,  that,  having  the  means 
at  hand  to  determine  whether  or  not  the 
mistake  had  been  made,  and  failing  to  use 
them,  he  was  not  entitled  to  damages  for 
expul.«ion  from  the  train. 

A  railroad-pass  fraudulently  obtained  con- 
fers no  rights  upon  the  holder.  Brown  v. 
Slissouri  etc.  R.  Co.,  64  Mo.  536.     Such  a  pass 


may  be   revoked    at   pleasure.    Turner  v, 
Richmond  etc.  R.  Co.,  70  N.  C.  1. 

In  Davis  v.  Great  Western  R.  Co., 20  Upper 
Canada  Q.  B.  27,  it  appeared  that  the  ticket 
offered  by  the  plaintiff  to  the  conductor 
must  have  been  sold  about  sixteen  months 
previous,  and  on  another  occasion  the  same 
plaintiff  had  presented  an  old  ticket,  and  on 
its  being  rejected  had  paid  his  fare.  These 
circumstances  were  held  to  be  calculated  to 
excite  suspicion;  therefore  the  mere  pro- 
duction of  the  ticket  was  not  sufficient  to- 
establish  the  plaintiff's  right  to  passage,  but 
it  was  a  question  lor  the  jury  whether  the 
plaintiff  had  procured  it  fairly  or  was  at- 
tempting an  imposition. 

■■  Weaver  v.  Rome  etc.  R.  Co.,  3  Thomp.  & 
0.  270;  Shelton  v.  Lake  Shore  etc.  R.  Co.,  29 
Ohio  St.  214 ;  Pullman  Palace-Car  Co.  v.  Reed, 
75  111.  125;  Willetts  v.  Buffalo  etc.  R.  Co.,  14 
Barb.  585;  Wakefield  v.  South  Boston  R.  Oo.^ 
117  Mass.  544;  Townsend  v.  New  York  etc.  R. 
Co.,  56  N.  Y.  295;  Duke  v.  Great  Western  R. 
Co.,  14  Upper  Canada  Q.  B.  377;  Crawford  v. 
Cincinnati  etc.  R.  Co.,  26  Ohio  St.  580. 

6  Chicago  etc.  R.  Co.  v.  Roberts,  40  111.  503; 
Chicago  etc.  R.  Co.  v.  Peacock,  48  111.  253; 
Chicago  etc.  R.  Co.  v.  Roger,  1  Bradw.  472 ; 
Ohio  etc.  R.  Co.  v.  Muhling,  30  111.  9;  Haley 
V.  Chicago  etc.  R.  Co.,  21  Iowa,  15;  Great 
Western  R.  Co.  v.  Miller,  19  Mich.  305;  The 
People  V.  Jillson,  3  Park.  Or.  Cas.  234;  Ful- 
ton V.  Grand  Trunk  R.  Co.,  17  Upper  Canada 
Q.  B.  428. 

6  Regina  v.  Faneuf,  5  Lower  Canada  Jur. 
167 ;  St.  Louis  etc.  R.  Co.  v.  Dalby,  19  111.  353 ; 
Chicago  etc.  R.  Co.  v.  Parks,  ante,  p.  .319;  St. 
Louis  etc.  R.  Co.  v.  South,  43  111.  176;  Crocker 
V.  New  London  etc.  R.  Co.,  24  Conn.  249; 
rorter  v.  New  Y'ork  etc.  R.  Co.,  34  Barb.  353 ; 
Bordeaux  v.  Erie  R.  Co.,  8  Hun,  579;  The 
State  V.  Chovin,  7  Iowa,  204 ;  Du  Laurans  v. 
St.  Paul  etc.  R.  Co.,  15  Minn.  49;  Indianapo- 
lis etc.  R.  Co.  V.  Rinard,46  Ind.  293;  Hilliard 
V.  Goold,  34  N.  H.  230.  It  required  a  judicial 
decision,  in  California,  to  establish  that  an 
offer  to  pay  the  fare  demanded,  in  legal-ten- 
der notes  of  the  United  States,  was  a  suffi- 
cient tender.  Tarbell  v.  Central  Pacific  R. 
Co.,34Cal.616. 

^  Peck  V.  New  York  etc.  R.  Co.,  70  N.  Y.  587  ; 
Bass  V.  Chicago  etc.  R.  Co.,  36  Wis.  450;  s.  c. 


BY    THE    CARKIER'S    SERVANTS.  377 


Circumstances  justifying  Expulsion  of  Passenger. 

of  the  contract  of  carriage. ^  Circumstances  like  the  foregoing  furnish  common 
illustrations  of  what  will  justify  the  expulsion  of  the  passenger  by  the  carrier's 
servants. 

§  6.  WTiere  Persons  may  be  ejected  from  a  Railroad  Train.  —  In  the  absence 

of  a  statute  regulating  this  matter,  there  is  no  requirement  at  common  law  to 
put  out  a  trespasser  at  one  place  rather  than  another.  His  convenience  is  not 
to  be  consulted  in  this  matter.  But  the  law  never  permits  one  to  wantonly 
expose  another  to  injury.^  In  England,  it  is  provided  by  statute  that  "pas- 
sengers refusing  to  pay  their  fare  may,  by  the  conductor  of  the  train  and  the 
servants  of  the  company,  be,  with  their  baggage,  put  out  of  the  cars,  using  no 
unnecessary  force,  at  any  usual  stopping-place  or  near  any  dwelling-house,  as 
the  conductor  shall  elect,  first  stopping  the  train."  ^  Statutes  similar  to  this  are 
in  force  in  some  of  the  States ;  it  is  sometimes  provided  that  a  passenger  shall 
be  expelled  at  no  other  place  than  a  regular  station  upon  the  road.*  Under  a 
statute  which  provided  that  passengers  should  be  expelled  from  the  train  only 
at  the  "usual  stopping-place,"  it  was  held  that  a  water- tank,  although  a  usual 
stopping-place,  was  not  such  as  was  contemplated  by  this  statute,  which  must 
be  a  regular  station.^  Trespassers  —  persons  going  upon  the  train  with  the 
intention  of  not  paying  their  fare  —  cannot  claim  the  benefits  of  a  statute  of  this 
kind.  They  are  in  no  sense  "passengers."  They  may  be  expelled  at  any  place 
where  such  expulsion  would  not  result  in  wanton  injury.*  A  regulation  provided 
that  "  passengers  will  not  be  carried  on  way-trains  unless  they  are  provided 
with  tickets.  Way-freights  will  not  stop  at  stations  where  tickets  are  not  sold,  to 
receive  nor  let  off  passengers."  This  is  reasonable;  but  a  passenger  who  has 
ridden  on  a  way-freight  train  before  the  making  of  the  rule,  and  afterwards, 
without  objection  for  the  want  of  a  ticket,  cannot  be  landed  off  the  train  a  mile 
from  a  station,  without  proof  of  express  notice  or  actual  knowledge  of  the  exist- 
ence of  the  rule  forbidding  any  one  to  enter  the  cars  without  a  ticket.'' 

39  Wis.  636 ;  42  Wis.  654 ;  ante,  p.  311 ;  West  Upper  Canada  Q.  B.  504 ;  Barlser  v.  Coflin,  31 

Cliester  R.  Co.  v.  Miles,  55  Pa.  St.  209;  Goines  Barb.  556;   Gale  v.  Delaware  etc.  K.  Co.,  7 

r.  MeCandless,  4  Phila.  255;  Cully  v.  Balti-  Hun,  670. 

more  etc.  R.  Co.,  1  Hughes,  536;  Green  v.  The  2  Great  Western  R.  Co.  v.  Miller,  19  Mich. 

City  of  Bridgeton,  9Cent.  L.J.  206;  The  Com-  305;  Haley  v.  Chicago  etc.  R.  Co.,  21  Iowa,  15. 

moil  wealth  «.  Power,  7  Mete.  596;  Jenclcs  v.  ^  Fulton  v.  Grand  Trunk  R.  Co.,  17  Up- 

Coleman,  2  Sumn.  221,  ante,  p.  11;  Harris  w.  per  Canada  Q.  B.  428. 

Stevens,  31  Vt.  79;  Barney  v.  The  D.  R.  Mar-  *  Rev.  Stats.  111.  1877,  p.  774,  sect.  80;  Chi- 
tin,  11  Blatchf.  233;  s.  c.  5  Ch.  Leg.  N.  535;  cago  etc.  R.  Co.  v.  Flagg,  43  111.  364;  Terre 
sub  nom.  Barney  v.  The  Oyster  Bay  etc.  Co.,  Haute  etc.  R.  Co.  v.  Vanatta,  21  111.  188. 
67  N.  Y.  301.  6  Chicago  etc.  R.  Co.  v.  Flagg,  43  111.  364. 
1  Stone  V.  Chicago  etc.  R.  Co.,  47  low,  82;  «  Lillis  v.  St.  Louis  etc.  R.  Co.,  64  Mo.  4(;4; 
Dietrich  v.  Pennsylvania  R.  Co.,  71  Pa.  St.  Chicago  etc.  R.  Co.  v.  Boger,  1  Bradw.  472. 
432;  Hamilton  V.  New  Yorli  etc.  R.  Co.,  51  N.  The  contrary  rule,  announced  in  Chicago 
Y.  100;  Cheney  v.  Boston  etc.  R.  Co.,  11  etc.  R.  Go.  ?;.  Peacock,  48  111.2.53,  and  Chicago 
Mete.  121;  Cleveland  etc.  R.  Co.  v.  Bartram,  etc.  R.  Co.  v.  Roberts,  40  111.  503,  would  per- 
il Ohio  St.  457;  The  State  t;.  Overton,  24  N.  mit  a  trespasser  to  ride  the  length  and 
J.  L.  435;  Johnson  v.  Concord  R.  Co.,  46  N.  breadth  of  the  State,  suffering  only  the  in- 
H.  213;  Beebe  v.  Ayres,  28  Barb.  275;  Drew  convenience  of  being  gently  banded  off  the 
V.  Central  Pacific  R.  Co.,  51  Cal.  425;  Briggs  train  at  each  station. 

V.  Grand  Trunk  etc.  R.  Co.,  24  Upper  Canada  '  Lake  Shore  etc.  R.  Co.  v.  Greenwood,  79 

Q.  B.  510;  Craig  v.  Great  Western  R.  Co.,  24  Pa.  St.  373. 


CHAPTEE    XI. 

CONTRACTS  LIMITING   CARRIER'S   LIABILITY   FOR  PER- 
SONAL  INJURIES. 


Leading  Case:    Bailroad  Company  v.  Lockwood.  — Right  of  carrier  to  stipulate 

against  liability. 

•fOTES:     §  1.  Validity  of  contract  limiting  liability  of  carrier  to  passenger 
travelling  upon  a  free  pass. 
2.  Drovers'  passes. 
S.  What  negligence  is  covered  by  such  a  release. 


RIGHT   OF   CARRIER  TO   STIPULATE   AGAINST  LIABILITY. 

Railroad  CoaiPANY  v.  Lockwood.* 
Supreme  Court  of  the  United  States,  1873, 


Hon.  Nathan  Clifford, 

•*  Samuel  F.  Miller, 

"  Stephen  J.  Field, 

**  Joseph  P.  Bradley, 

"  Noah  H.  Swayne, 

"  David  Davis, 

**  William  Strong, 

"  Ward  Hunt, 


Justices. 


!■  Stipulation  must  be  just  and  reasonable.  —  A  common  carrier  may  not  lawfully  stip- 
ulate against  tlie  responsibility  which  the  law  imposes  upon  him,  unless  such  stipula 
tion  is  just  and  reasonable. 

2.  Cannot  stipulate  against  Negligence.  — It  is  not  just  and  reasonable  for  a  common 

carrier  to  stipulate  for  exemption  from  responsibUity  for  the  negligence  of  himself  or 
his  servants. 

3.  The  Application  of  these  Rules.  — These  rules  are  said  to  apply  both  to  caniers  of 

goods  and  carriers  of  passengers,  and  with  special  force  to  the  latter. 

4.  Effect  of  Drover's  Pass.- Where  a  drover  travels  on  a  pass  given  to  enable  him 
to  take  care  of  cattle  which  he  is  shipping  on  a  raUroad  train,  he  is  a  passenger  for 
hire. 

The  plaintiff  in  this  case  was  a  drover  injured  whilst  travelling  on  a 
stock-train   of  the  New  York  Central   Railroad  Company  proceeding 


*  Reported,  17  Wall.  357. 


(378) 


CONTRACTS    LIMITING    CARRIER'S    LIABILITY.  379 

Supreme  Court  of  the  United  States. 

from  Buffalo  to  Albany,  and  brought  this  suit  to  recover  damages  for 
the  injur}'.  He  had  cattle  in  the  train,  and  had  been  required  at  Buf- 
falo to  sign  an  agreement  to  attend  to  the  loading,  transporting,  and 
unloading  of  them,  and  to  take  all  risk  of  injury  to  them  and  of  per- 
sonal injury  to  himself  or  to  whomsoever  went  with  the  cattle  ;  and  he 
received  what  is  called  a  drover's  pass, — that  is  to  saj',  a  pass  certif}'- 
ing  that  he  had  shipped  sufficient  stock  to  pass  free  to  Albany,  but 
declaring  tliat  the  acceptance  of  the  pass  was  to  be  considered  a  waiver 
of  all  claims  for  damages  or  injuries  received  on  the  train.  The  agree- 
ment stated  its  consideration  to  be  the  carrying  of  the  plaintiff's  cattle 
at  less  than  tariff  rates.  It  was  shown  on  the  trial  that  these  rates  were 
about  three  times  the  ordinarj'^  rates  charged,  and  that  no  drover  had 
cattle  carried  on  those  terms ;  but  all  signed  similar  agreements  to  that 
which  was  signed  by  the  plaintiff,  and  received  similar  passes.  Evi- 
dence was  given  on  the  trial  tending  to  show  that  the  injury  complained 
of  was  sustained  in  consequence  of  negligence  on  the  part  of  the  defend- 
a,nts  or  their  servants,  but  they  insisted  that  thej^  were  exempted  by  the 
terms  of  the  contract  from  responsibility  for  all  accidents,  including  those 
occurring  from  negligence, — at  least  the  ordinary  negligence  of  their 
servants,  —  and  requested  the  judge  so  to  charge.  This  he  refused, 
and  charged  that  if  the  jury  were  satisfied  that  the  injury  occurred  with- 
out any  negligence  on  the  part  of  the  plaintiff,  and  that  the  negligence 
of  the  defendants  caused  the  injury,  they  must  find  for  the  plaintiff, 
which  they  did.  Judgment  being  entered  accordingly,  the  railroad 
company  took  this  writ  of  error. 

It  is  unnecessary  to  notice  some  subordinate  points  made ;  this  court 

was  of  opinion  that  all  the  questions  of  fact  were  fairly  left  to  the  jury, 

and  the  whole  controversy  depended  on  the  main  question  of  law  stated. 

T.  R.  Strong,  for   plaintiff   in   error;   Messrs.   Truman   Smith   and 

Cephas  Brainerd,  contra. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court.  —  It  may 
be  assumed,  in  limine,  that  the  case  was  one  of  carriage  for  hire ;  for 
though  the  pass  certifies  that  the  plaintiff  was  entitled  to  pass  free,  yet 
his  passage  v»^as  one  of  the  mutual  terms  of  the  arrangement  for  carry- 
ing his  cattle.  The  question  is  therefore  distinctly  raised,  whether  a 
railroad  company  carrying  passengers  for  hire  can  lawfully  stipulate  not 
to  be  answerable  for  their  own  or  their  servants'  negligence  in  reference 
to  such  carriage. 

As  the  duties  and  responsibilities  of  public  carriers  were  prescribed 
by  public  policy,  it  has  been  seriously  doubted  whether  the  courts  did 
wisely  in  allowing  that  policy  to  be  departed  from  without  legislative 


380  CONTRACTS    LIMITING    CARRIER'S    LIABILITY. 

Railroad  Company  v.  Lockwood. 

interference,  by  which  needed  modifications  could  have  been  introduced 
into  the  law.  But  the  great  hardship  on  the  carrier  in  certain  special 
cases,  where  goods  of  great  value  or  subject  to  extra  risk  were  deliv- 
ered to  him  without  notice  of  their  character,  and  where  losses  happened 
by  sheer  accident,  without  any  possibility  of  fraud  or  collusion  on  hi- 
part,  such  as  by  collisions  at  sea,  accidental  fire,  etc.,  led  to  a  relaxa- 
tion of  the  rule  to  the  extent  of  authorizing  certain  exemptions  from 
liability  in  such  cases  to  be  provided  for,  either  by  public  notice 
brought  home  to  the  owners  of  the  goods,  or  by  inserting  exemptions 
from  liability  in  the  bill  of  lading  or  other  contract  of  carriage.  A 
modification  of  the  strict  rule  of  responsibility,  exempting  the  carrier 
from  liability  for  accidental  losses,  where  it  can  be  safely  done,  enables 
the  carrying  interest  to  reduce  its  rates  of  compensation  ;  thus  propor- 
tionately relieving  the  transportation  of  produce  and  merchandise  from 
some  of  the  burdens  with  which  it  is  loaded. 

The  question  is,  whether  such  modification  of  responsibility  by  notice 
or  special  contract  may  not  be  carried  beyond  legitimate  bounds,  and 
Introduce  evils  against  which  it  was  the  direct  policy  of  the  law  to 
guard ;  whether,  for  example,  a  modification  which  gives  license  and 
immunity'  to  negligence  and  carelessness  on  the  part  of  a  public  car- 
rier or  his  servants,  is  not  so  evidently  repugnant  to  that  policy  as 
to  be  altogether  null  and  void,  — or,  at  least,  null  and  void  under  certain 
circumstances. 

In  the  case  of  sea-going  vessels,  Congress  has,  by  the  act  of  1851. 
relieved  ship-owners  from  all  responsibility  for  loss  by  fire,  unless 
caused  by  their  own  design  or  neglect ;  and  from  responsibility  for 
loss  of  money  and  other  valuables  named,  unless  notified  of  their  char- 
acter and  value ;  and  has  limited  their  liability  to  the  value  of  the  ship 
and  freight,  where  losses  happen  by  the  embezzlement  or  other  act  of 
the  master,  crew,  or  passengers ;  or  by  collision,  or  any  cause  occurring 
without  their  privity  or  knowledge  ;  but  the  master  and  crew  themselves 
are  held  responsible  to  the  parties  injured  by  their  negligence  or  mis- 
conduct. Similar  enactments  have  been  made  by  State  legislatures. 
This  seems  to  be  the  onl}-  important  modification  of  previously  existing 
law  on  the  subject  which,  in  this  country,  has  been  effected  by  legisla- 
tive interference.  And  by  this  it  is  seen,  that,  though  intendetl  for  the 
relief  of  the  ship-owner,  it  still  leaves  him  liable  to  the  extent  of  his 
ship  and  frelglit,  for  the  negligence  and  misconduct  of  his  employees, 
and  liable  without  limit  for  his  own  negligence. 

It  is  true  that  the  first  section  of  the  above  act,  relating  to  loss  by 
fire,  has  a  proviso  that  nothing  in   the   act  contained  shall  prevent  the 


IN    CASE    OF    PERSONAL    INJURIES.  381 

Supreme  Court  of  the  United  Stages. 

parties  from  making  such  contract  as  tliey  please,  extending  or  limiting 
the  liability  of  ship-owners.  This  proviso,  however,  neither  enacts  nor 
tilfirms  anything.  It  simply'  expresses  the  intent  of  Congress  to  leave 
the  right  of  contracting  as  it  stood  before  the  act. 

The  courts  of  New  York,  where  this  case  arose,  for  a  long  time 
resisted  the  attempts  of  common  carriers  to  limit  their  common-law 
liability,  except  for  the  purpose  of  procuring  a  disclosure  of  the  char- 
-ficter  and  value  of  articles  liable  to  extra  hazard  and  risk.  This  they 
were  allowed  to  enforce  by  means  of  a  notice  of  non-liability  if  the  dis- 
-closure  was  not  made.  But  such  announcements  as  "All  baggage  at 
the  risk  of  the  owner,"  and  such  exceptions  in  bills  of  lading  as  "This 
company  will  not  be  responsible  for  injuries  by  fire,  nor  for  goods  lost, 
«tolen,  or  damaged,"  were  held  to  be  unavailing  and  void,  as  being 
iigainst  the  policy  of  the  law.^ 

But  since  the  decision  in  the  case  of  New  Jersey  Steam  Naviga- 
tion Comjyany  v.  Merchants'  Bank,  by  this  court,  in  January  term,  1848, ^ 
it  has  been  uniformly  held,  as  well  in  the  courts  of  New  York  as  in  the 
Federal  courts,  that  a  common  carrier  may,  by  special  contract,  limit 
his  common-law  liability,  although  considerable  diversity  of  opinion  has 
•existed  as  to  the  extent  to  which  such  limitation  is  admissible. 

The  case  of  New  Jersey  Navigation  Company  v.  Merchants'  Bank, 
above  adverted  to,  grew  out  of  the  burning  of  the  steamer  Lex- 
ington. Certain  money  belonging  to  the  bank  had  been  intrusted  to 
Harnden's  Express,  to  be  carried  to  Boston,  and  was  on  board  the 
steamer  when  she  was  destroyed.  By  agreement  between  the  steam- 
boat company  and  Harnden,  the  crate  of  the  latter  and  its  contents 
were  to  be  at  his  sole  risk.  The  court  held  this  agreement  valid  so  far 
as  to  exonerate  the  steamboat  company  from  the  responsibility  imposed 
by  law,  but  not  to  excuse  them  for  misconduct  or  negligence,  which 
tiie  court  said  it  would  not  presume  that  the  parties  intended  to  include, 
although  the  terms  of  the  contract  were  broad  enough  for  that  purpose  ; 
and  that,  inasmuch  as  the  company  had  undertaken  to  carry  the  goods 
from  one  place  to  another,  they  were  deemed  to  have  incurred  the  same 
degree  of  responsibility  as  that  which  attaches  to  a  private  person 
engaged  casually  in  the  like  occupation,  and  were,  therefore,  bound  to 
use  ordinary  care  in  the  custody  of  the  goods  and  in  their  delivery, 
and  to  provide  proper  vehicles  and  means  of  conveyance  for  their 
transportation ;  and  as  the  court  was  of  opinion  that  the  steamboat 
company  had  been  guilty  of  negligence  in  these  particulars,  as  well  as 

'  Cole  V.  Goodwin,  19  Wend.  257;  Gould  v.  Hill,  2  Hill,  623.  6  How.  Ui. 


'6S2  CONTKACTS    LIMITING    CARRIER'S    LIABILITY. 

Railroad  Company  v.  Lockwood. 

in  the  management  of   the  steamer  during  the  fire,   they  held  them 
responsible  for  the  loss. 

As  this  has  been  regarded  as  a  leading  case,  we  may  pause  for  a 
moment  to  observe  that  the  case  before  us  seems  almost  precisely  within 
the  category  of  that  decision.  In  that  case,  as  in  this,  the  contract  was 
general,  exempting  the  carrier  from  every  risk  and  imposing  it  all  upon 
the  party ;  but  the  court  would  not  presume  that  the  parties  intended 
to  include  the  negligence  of  the  carrier  or  his  agents  in  that  exception. 

It  is  strenuously  insisted,  however,  that  as  negligence  is  the  only 
ground  of  liability  in  the  carriage  of  passengers,  and  as  the  contract  is 
absolute  in  its  terms,  it  must  be  construed  to  embrace  negligence  as 
well  as  accident,  the  former  in  reference  to  passengers,  and  both  in 
reference  to  the  cattle  carried  in  the  train.  As  this  argument  seems 
plausible,  and  the  exclusion  of  a  liabiUty  embraced  in  the  terms  of 
exemption  on  the  ground  that  it  could  not  have  been  in  the  mind  of  the 
parties  is  somewhat  arbitrary,  we  will  proceed  to  examine  the  question 
before  propounded,  namely,  whether  common  carriers  may  excuse  them- 
selves from  liability  for  negligence.  In  doing  so  we  shall  first  briefly 
review  the  course  of  decisions  in  New  York,  on  which  great  stress  has 
been  laid,  and  which  are  claimed  to  be  decisive  of  the  question. 
Whilst  we  cannot  concede  this,  it  is  nevertheless  due  to  the  courts  of 
that  State  to  examine  carefully  the  grounds  of  their  decision,  and  to 
give  them  the  weight  wliich  they  justly  deserve.  We  think  it  will  be 
found,  however,  that  the  weight  of  opinion,  even  in  New  York,  is  not 
altogether  on  the  side  that  favors  the  right  of  the  carrier  to  stipulate 
for  exemption  from  the  consequences  of  his  own  or  his  servants'  negli- 
gence. 

The  first  recorded  case  that  arose  in  New  York,  after  the  before- 
mentioned  decision  in  this  court,  involving  the  right  of  a  carrier  to  limit 
his  liability,  was  that  of  Dorr  v.  New  Jersey  Steam  Navigation  Com- 
oany,^  decided  in  1850.  This  case  also  arose  out  of  the  burning  of 
the  Lexington,  under  a  bill  of  lading  which  excepted  from  the  com- 
pany's risk  "danger  of  fire,  water,  breakage,  leakage,  and  other  acci- 
dents." Judge  Campbell,  delivering  the  opinion  of  the  court,  says: 
"A  common  carrier  has  in  truth  two  distinct  liabilities:  the  one  for 
losses  by  accident  or  mistake,  where  he  is  liable  as  an  insurer;  the 
other  for  losses  by  default  or  negligence,  where  he  is  answerable  as  an 
ordinary  bailee.  It  would  certainly  seem  reasonable  that  he  might,  by 
express  special  contract,  restrict  his  liability  as  insurer ;  that  he  might 

1  4  Sandf.  S.  C.  136. 


IN    CASE    OF    PERSONAL    INJURIES.  383 

Supreme  Court  of  the  United  States. 

protect  himself  against  misfortune,  even  though  public  policy  should 
require  that  he  should  not  be  permitted  to  stipulate  for  impunity  where 
the  loss  occurs  from  his  own  default  or  neglect  of  duty.  Such  we 
understand  to  be  the  doctrine  laid  down  in  the  case  of  New  Jersey 
Steam  Navigation  Company  v.  Merchants'  Bank,  in  6  Howard,  and 
such  we  consider  to  be  the  law  in  the  present  case."  And  in  Stoddard 
V.  Long  Island  Railway  Company,^  another  express  case,  in  which  it 
was  stipulated  that  the  express  company  should  be  alone  responsible  for 
all  losses.  Judge  Duer,  for  the  court,  says:  "Conforming  our  decision 
to  that  of  the  Supreme  Court  of  the  United  States,  we  must  therefore 
hold:  1.  That  the  liability  of  the  defendants  as  common  carriers  was 
restricted  by  the  terms  of  the  special  agreement  between  them  and 
Adams  &  Co.,  and  that  this  restriction  was  valid  in  law.  2.  That  by 
the  just  interpretation  of  this  agreement,  the  defendants  were  not  to  be 
exonerated  from  all  losses,  but  remained  liable  for  such  as  might  result 
from  the  wrongful  acts,  or  the  want  of  due  care  and  diligence,  of  them- 
selves or  their  agents  and  servants.  3.  That  the  plaintiffs,  claiming 
through  Adams  &  Co.,  are  bound  by  the  special  agreement."  The 
same  view  was  taken  in  subsequent  cases, ^  all  of  which  show  that  no 
idea  was  then  entertained  of  sanctioning  exemptions  of  liability  for 
negligence. 

It  was  not  till  1858,  in  the  case  of  Wells  v.  Neio  YorTc  Central  Rail- 
road Company,'^  that  the  Supreme  Court  was  brought  to  assent  to  the 
proposition  that  a  common  carrier  may  stipulate  against  responsiljility 
for  the  negligence  of  his  servants.  That  was  the  case  of  a  gratuitous 
passenger  travelling  on  a  free  ticket  which  exempted  the  company  from 
liability.  In  1862,  the  Court  of  Appeals,  by  a  majority,  afflrmed  this 
judgment;^  and  in  answer  to  the  suggestion  that  public  policy  required 
that  railroad  companies  should  not  be  exonerated  from  the  duty  of 
carefulness  in  performing  their  important  and  hazardous  duties,  the 
court  held  that  the  case  of  free  passengers  could  not  seriously  affect 
the  incentives  to  carefulness,  because  there  were  very  few  such,  com- 
pared with  the  great  mass  of  the  travelling  public.  Perkins  v.  New  York 
Central  Railroad  Company^  was  also  the  case  of  a  free  passenger, 
with  a  similar  ticket;  and  the  court  held  that  the  indorsement  exempted 
the  company  from  all  kinds  of  negligence  of  its  agents,  gross  as  well  as 
ordinary ;  that  there  is,  in  truth,  no  practical  distinction  in  the  degrees 
of  negligence. 

1  5  Sandf.  S.  C.  180.  »  26  Barb.  641. 

s  Parsons  v.  Monteath,  13  Barb.  353 ;  Moore  »  24  N.  Y.  181. 

V.  Evans,  14  Barb.  524.  '  24  N.  Y.  196. 


■384  CONTRACTS    LIMITING    CARRIER'S    LIABILITY. 

Railroad  Company  v.  Lockwood. 

The  next  cases  of  importance  that  arose  in  the  New  York  courts  were 
those  of  drovers'  passes,  in  which  the  passenger  took  all  responsibility 
■of  injury  to  himself  and  stock.  The  first  was  that  of  Smith  v.  New 
York  Central  Railroad  Company,'^  decided  in  March,  1859.  The  con- 
tract was  precisely  the  same  as  that  in  the  present  case.  The  damage 
arose  from  a  flattened  wheel  in  the  car,  which  caused  it  to  jump  the 
track.  The  Supreme  Court,  by  Hogeboom,  J.,  held  that  the  railroad 
company  was  liable  for  any  injury  happening  to  the  passenger,  not  only 
by  the  gross  negligence  of  the  compan^-'s  servants,  but  by  ordinary 
negligence  on  their  part.  "For  my  part,"  says  the  judge,  "  I  think 
not  only  gross  negligence  is  not  protected  b}'  the  terms  of  the  contract, 
but  what  is  termed  ordinary  negligence,  or  the  withholding  of  ordinary 
<;are,  is  not  so  protected.  I  think,  notwithstanding  the  contract,  the 
carrier  is  responsible  for  what,  independent  of  any  peculiar  responsi- 
bility attached  to  his  calling  or  employment,  would  be  regarded  as  fault 
or  misconduct  on  his  part."  The  judge  added  that  he  thought  the  car- 
rier might,  by  positive  stipulation,  relieve  himself  to  a  limited  degree 
from  the  consequences  of  his  own  negligence  or  that  of  his  servants. 
But  to  accomplish  that  object  the  contract  must  be  clear  and  specific 
in  its  terms,  and  plainly  covering  such  a  case.  Of  course  this  remark 
was  extra-judicial.  The  judgment  itself  was  affirmed  by  the  Court  of 
Appeals  in  1862,  by  a  vote  of  five  judges  to  three. ^  Judge  Wright 
strenuously  contended  that  it  is  against  public  policy  for  a  carrier  of 
passengers,  where  human  life  is  at  stake,  to  stipulate  for  immunity  for 
any  want  of  care.  "  Contracts  in  restraint  of  trade  are  void,"  he 
says,  "because  they  interfere  with  the  welfare  and  convenience  of  the 
State ;  yet  the  State  has  a  deep  interest  in  protecting  the  lives  of  its  citi- 
zens." He  argued  that  it  was  a  question  affecting  the  public,  and  not 
alone  the  party  who  is  carried.  Judge  Sutherland  agreed  in  substance 
with  Judge  Wright.  Two  other  judges  held  that  if  the  party  injured 
had  been  a  gratuitous  passenger  the  company  would  have  been  dis- 
charged, but  in  their  view  he  was  not  a  gratuitous  passenger.  One 
judge  was  for  affirmance  on  the  ground  that  the  negligence  was  that  of 
the  company  itself.  The  remaining  three  judges  held  the  contract  valid 
to  the  utmost  extent  of  exonerating  the  company,  uoLwithsluiidiiig  the 
grossest  neglect  on  the  part  of  its  servants. 

In  that  case,  as  in  the  one  before  us,  the  contvar^t  was  general  in  its 
terms,  and  did  not  specify  negligence  of  agents  as  a  risk  assumed  by 
the  passenger,  though  by  its  generality  it  included  all  risks. 

»  29  Barb.  132.  2  24  N.  Y.  223. 


IN    CASE    OF    PERSONAL    INJURIES.  385 

Supreme  Court  of  the  Uuited  States. 

The  next  case,  Bissell  v.  N'ew  York  Central  Railroad  Company,^ 
first  decided  in  September,  1859,  differed  from  the  preceding  in  that  the 
ticket  express]}''  stipulated  that  the  raih-oad  company  should  not  be  liable 
under  any  circumstances,  "■  whether  of  negligence  by  their  agents  or 
•otherwise,"  for  injury  to  the  person  or  stock  of  the  passenger.  The 
latter  was  killed  by  the  express-train  running  into  the  stock-train,  and 
the  jury  found  that  his  death  was  caused  by  the  gross  negligence  of  the 
ngents  and  servants  of  the  defendants.  The  Supreme  Court  held  that 
i^ross  negligence  (whether  of  servants  or  principals)  cannot  be  excused 
by  contract  in  reference  to  the  carriage  of  passengers  for  hire,  and  that 
such  a  contract  is  against  the  policy  of  the  law,  and  void.  In  December, 
1862,  this  judgment  was  reversed  by  the  Court  of  Appeals,  — four  judges 
ngainst  three, ^ — Judge  Smith,  who  concurred  in  the  judgment  below,  hav- 
ing in  the  meantime  changed  his  views  as  to  the  materiality  of  the  fact 
that  the  negligence  stipulated  against  was  that  of  the  servants  of  the  com-  ■ 
pany,  and  not  of  the  company  itself.  The  majority  now  held  that  the 
ticket  was  a  free  ticket,  as  it  purported  to  be,  and  therefore  that  the 
case  was  governed  by  Wells  v.  New  York  Central  Railroad  Com- 
pany ;  3  but  whether  so  or  not,  the  contract  was  founded  on  a  valid  con- 
sideration, and  the  passenger  was  bound  to  it,  even  to  the  assumption  of 
the  risk  arising  from  the  gross  negligence  of  the  company's  servants. 
Elaborate  opinions  were  read  by  Justice  Selden  in  favor,  and  by  Jus- 
tice Denio  against  the  conclusions  reached  by  the  court.  The  former 
considered  that  no  rule  of  public  policy  forbids  such  contracts,  because 
the  public  is  amply  protected  by  the  right  of  every  one  to  decline  any 
special  contract,  on  paying  the  regular  fare  prescribed  by  law,  —  that 
is,  the  highest  amount  which  the  law  allows  the  company  to  charge.  In 
other  words,  unless  a  man  chooses  to  pay  the  highest  amount  which  the 
company  by  its  charter  is  authorized  to  charge,  he  must  submit  to  their 
terms,  howev^er  onerous.  Justice  Denio,  with  much  force  of  argument, 
combated  this  view,  and  insisted  upon  the  impolicy  and  immorality  of 
contracts  stipulating  immunity  for  negligence,  either  of  servants  or 
principals,  where  the  lives  and  safety  of  passengers  are  concerned. 
The  late  case  of  Poucher  v.  New  York  Central  Railroad  Company'^  is 
in  all  essential  respects  a  similar  case  to  this,  and  a  similar  result  was 
reached. 

These  are  the  authorities  which  we  are  asked  to  follow.  Cases  may 
also  be  found  in  some  of  the  other  State  courts,  which,  by  dicta  or  deci- 
sion, either  favor  or  follow  more  or  less  closely  the  decisions  in  New 

1  29  Baib.  602.  3  04  jf.  y.  181 ;  8.  c.  26  Barb.  641. 

s  25  N.  Y.  442.  <  49  N.  Y.  203. 

25 


386  CONTRACTS   LIMITING    CARRIER'S   LIABILITY. 


Railroad  Company  v.  Lockwood. 

York.     A  reference  to  the  principal  of  them  is  all  that  is  necessary 
here  J 

A  review  of  the  cases  decided  by  the  courts  of  New  York  shows  that 
though  they  have  carried  the  power  of  the  common  carrier  to  make 
special  contracts  to  the  extent  of  enabling  him  to  exonerate  himself 
from  the  effects  of  even  gross  negligence,  yet  that  this  effect  has  never 
been  given  to  a  contract  general  in  its  terms ;  so  that  if  we  only  felt 
bound  by  those  precedents,  we  could  perhaps  find  no  authority  for 
reversing  the  judgment  in  this  case.  But  on  a  question  of  general 
commercial  law,  the  Federal  courts  administering  justice  in  New  York 
have  equal  and  coordinate  jurisdiction  with  the  courts  of  that  State. 
And  in  deciding  a  case  which  involves  a  question  of  such  importance 
to  the  whole  country,  a  question  on  which  the  courts  of  New  York 
have  expressed  such  diverse  views,  and  have  so  recently,  and  with  such 
slight  preponderancy  of  judicial  suffrage,  come  to  the  conclusion  that 
they  have,  we  should  not  feel  satisfied  without  being  able  to  place  our 
decision  upon  grounds  satisfactory  to  ourselves,  and  resting  upon  what 
we  consider  sound  principles  of  law. 

In  passing,  however,  it  is  apposite  to  call  attention  to  the  testimony 
of  an  authoritative  witness  as  to  the  operation  and  effect  of  the  recent 
decisions  referred  to.  "The  fruits  of  this  rule,"  sa^^s  Judge  Davis, 
''  are  already  being  gathered  in  increasing  accidents,  through  the 
decreasing  care  and  vigflance  on  the  part  of  these  corporations ;  and 
they  will  continue  to  be  reaped  until  a  just  sense  of  public  policy  shall 
lead  to  legislative  restriction  upon  the  power  to  make  this  kind  of  con- 
tracts." 2 

"We  now  proceed  to  notice  some  cases  decided  in  other  States,  in  which 
a  different  view  of  the  subject  is  taken. 

In  Penns^-lvania,  it  is  settled  by  a  long  course  of  decisions  that  a  com- 
mon carrier  cannot,  by  notice  or  special  contract,  limit  his  liability  so 
as  to  exonerate  him  from  responsibility  for  his  own  negligence  or  mis- 
feasance, or  that  of  his  servants  and  agents. ^     ''The  doctrine  is  firmly 

1  Ashmore  v.  Penn.  etc.  Transp.  Co.,  28  N.  32  Md.  333;  Brehme  v.  Adams  Express  Co. 

J.  L.  ISO ;  Kinney  v.  Central  R.  Co.,  32  N.  J.  25  Md.  328 ;  Levering  v.  Union  Transp.  Co.,  42 

L.  407;  Hale  v.  New  Jersey  Steam  Nav.  Co.,  Mo.  88. 

15  Conn.  539;  Peck  v.  Weeks,  34  Conn.  145;  2  Stinson  v.  New  York  etc.  K.  Co.,  32  N.  Y. 

Lawrence  v.  Xew  York  etc.  R.  Co.,  36  Conn.  337. 

63;  Kimball  v.  Rutland  etc.  R.  Co.,  26  Vt.  247;  3  Laing  v.  Colder,  8  Pa.  St.  479;  Camden 

Mann  v.  Birchard,  40  Vt.  333 ;  Adams  Ex-  etc.  R.  Co.  v.  Baldauf ,  16  Pa.  St.  67 ;  Goldey 

press  Co.  1).  Haynes,  42  111.  89;  Adams  Ex-  i;.  Pennsylvania  R.  Co.,  30  Pa.  St.  242;  Powel 

press  Co.  v.  Perkins,  42  111.  458;  Illinois  etc.  v.  Pennsylvania  R.  Co.,  32  Pa.  St.  414;  Penn 

R.  Co.  V.   Adams,  42  111.  474;    Hawkins  v.  sylvania  R.  Co.  r.  Henderson,  51  Pa.  St.  315: 

Great  Western  R.  Co.,  17  Mich.  57;  s.  c.  18  Farnham  v.  Camden  etc.  R.  Co.,  55  Pa.  St 

Mich.  427;  Baltimore  etc.  R.  Co.  v.  Brady,  53;  Express  Co.  v.  bands,  55  Pa.  St.  140;  Em 


IN   CASE    OF   PERSONAL   INJURIES.  387 


Supreme  Court  of  the  United  States. 

settled,"  says  Chief  Justice  Thompson  in  Farnham  v.  Camden  and 
Amhoy  Railroad  Company,  "  that  a  common  carrier  cannot  limit  his 
liability  so  as  to  cover  his  own  or  his  servants'  negligence."  ^  This  lia- 
bility is  affirmed  both  when  the  exemption  stipulated  for  is  general, 
covering  all  risks,  and  where  it  specifically  includes  damages  arising  from 
the  negligence  of  the  carrier  or  his  servants.  In  Pennsylvania  Railroad 
Company  v.  Henderson,"^  a  drover's  pass  stipulated  for  immunity  of  the 
company  in  case  of  injury  from  negligence  of  its  agents  or  otherwise. 
The  court,  Judge  Read  delivering  the  opinion,  after  a  careful  review  of 
the  Pennsylvania  decisions,  says:  "This  indorsement  relieves  the  com- 
pany from  all  liability,  for  any  cause  whatever,  for  any  loss  or  injury  to 
the  person  or  property,  however  it  may  have  been  occasioned  ;  and  our 
doctrine,  settled  by  the  above  decisions,  made  upon  grave  deliberation, 
declares  that  such  a  release  is  no  excuse  for  negligence." 

The  Ohio  cases  are  very  decided  on  this  subject,  and  reject  all 
attempts  of  the  carrier  to  excuse  his  own  negligence  or  that  of  his  ser- 
vants.^  In  Davidson  v.  Graham,^  the  court,  after  conceding  the  right 
of  the  carrier  to  make  special  contracts  to  a  certain  extent,  says:  "■  He 
cannot,  however,  protect  himself  from  losses  occasioned  by  his  own 
fault.  He  exercised  a  public  employment,  and  diligence  and  good 
faith  in  the  discharge  of  his  duties  are  essential  to  the  public  interests. 
*  *  *  And  public  policy  forbids  that  he  should  be  relieved  by 
special  agreement  from  that  degree  of  dihgence  and  fidelity  which  the 
law  has  exacted  in  the  discharge  of  his  duties."  In  Wehli  v.  Pittsburgh, 
Fort  Wayne,  and  Chicago  Railroad  Company,^  the  court  says:  "In  this 
State,  at  least,  railroad  companies  are  rapidly  becoming  almost  the  ex- 
clusive carriers  botli  of  passengers  and  goods.  In  consequence  of  the 
public  character  and  agency  which  they  have  voluntarily  assumed,  the 
most  important  powers  and  privileges  have  been  granted  to  them  by  the 
State."  From  these  facts  the  court  reasons  that  it  is  specially  important 
that  railroad  companies  should  be  held  to  the  exercise  of  due  diligence 
at  least.  And  as  to  the  distinction  taken  by  some,  that  negligence  of 
servants  may  be  stipulated  for,  the  court  pertinently  says:  "  This  doc- 
trine, when  applied  to  a  corporation,  which  can  only  act  through  its 
agents  and  servnnts,  would  secure  complete  immunity  for  the  neglect 
of  every  duty."  ^     And  in  relation  to  a  drover's  pass,  substantially  the 

pire  Transp.  Co.  v.  Wamsutta  Oil  Co.,  63  Pa.  4  Ohio  St.  723;  Welsh  v.  Pittsburgh  etc.  R. 

St.  14.  Co.,  10  Ohio  St.  75;  Cleveland  etc.  R.  Co.  v. 

>  S.')  Pa.  St.  62.                         2  Supra.  Curran,  19  Ohio  St.  1 ;  Cincinnati  etc.  R.  Co. 

8  Jones  V.  Voorhees,  10  Ohio,  145;  David-  v.  Pontius,  19  Ohio  St.  221;  Knowlton  v.  Erie 

eon  V.  Graham,  2  Ohio  St.  131;  Uraliain  v.  R.  Co.,  19  Ohio  St.  260. 

Davis,  4  Ohio  St.  CC2;  AVilson  v.  Hamilton,  *  Supra.       '"  10  Oliio  St.  75.       »  Id.  75,  76. 


388  CONTRACTS    LIMITING    CARRIER'S    LIABILITY.      • 

Railroad  Company  v.  Lockvvood. 

same  as  that  in  the  present  case,  the  same  court,  in  Cleveland,  etc.  Rail- 
road Company  v.  Curran,^  held:  1.  That  the  holder  was  not  a  gratui- 
tous passenger ;  2.  That  the  contract  constituted  no  defence  against 
the  negligence  of  the  company's  servants,  being  against  the  policy  of 
the  law,  and  void.  The  court  refers  to  the  cases  of  Bissell  v.  New 
York  Central  Railroad  Company^  and  of  Pennsylvania  Railroad  Com- 
2')any  v.  Henderson,'^  and  expresses  its  concurrence  in  the  Pennsylvania 
decision.^     This  was  in  December  term,  1869. 

The  Pennsj'lvania  and  Ohio  decisions  differ  mainly  in  this,  that  the 
former  give  to  a  special  contract  (when  the  same  is  admissible)  the 
effect  of  converting  the  common  carrier  into  a  special  bailee  for  hire, 
whose  duties  are  governed  by  his  contract,  and  against  whom,  if  negli- 
gence is  charged,  it  must  be  proved  by  the  party  injured;  whilst  the 
latter  hold  that  the  character  of  the  carrier  is  not  changed  by  the  con- 
tract, but  that  he  is  a  common  carrier  still,  with  enlarged  exemptions 
from  responsibility,  within  which  the  burden  of  proof  is  on  him  to  show 
that  an  injury  occurs.  The  effect  of  this  difference  is  to  shift  the  bur- 
den of  proof  from  one  party  to  the  other.  It  is  unnecessary  to  adjudi- 
cate that  point  in  this  case,  as  the  judge  on  the  trial  charged  the  jur}-, 
as  requested  bj'  the  defendants,  that  the  burden  of  proof  was  on  the 
plaintiff. 

In  Maine,  whilst  it  is  held  that  a  common  carrier  may,  by  special 
contract,  be  exempted  from  responsibility  for  loss  occasioned  by  natural 
causes,  such  as  the  weather,  fire,  heat,  frost,  etc.,^  yet  in  a  case  where 
it  was  stipulated  that  a  railroad  company  should  be  exonerated  from  all 
damages  that  might  happen  to  any  horses  or  cattle  that  might  be  sent 
over  the  road,  and  that  the  owners  should  take  the  risk  of  all  such  dam- 
ages, the  court  held  that  the  company  were  not  thereby  excused  from 
the  consequences  of  their  negligence,  and  that  the  distinction  between 
negligence  and  gross  negligence  in  such  a  case  is  not  tenable.  "  The 
very  great  danger,"  says  the  court,  "to  be  anticipated  by  permitting 
them  [common  carriers]  to  enter  into  contracts  to  be  exempt  from 
losses  occasioned  by  misconduct  or  negligence,  can  scarcely  be  over-es- 
timated. It  would  remove  the  piincipal  safeguard  for  the  preservation 
of  life  and  property  in  such  conveyances."^ 

To  the  same  purport  it  was  held  in  Massachusetts,  in  the  late  case  of 
School  District  v.  Boston,  etc.  Railroad  Company,"^  where  the  defendant 
set  up  a  special  contract  that  certain  iron  castings  were  taken  at  the 

1  19  Ohio  St.  1.  6  Fillebrown  v.  Gr.  Trunk  Ry.,  55  Me.  462. 

«  25  N.  Y.  442.  »  51  Pa.  St.  315,  e  Sager  v.  Portsmoutli,  31  Me.  228  238. 

♦  19  Ohio  St.  13. 14.  7  102  Mass.  552. 


IN    CASE    OF    PERSONAL    INJURIES.  389 

Supreme  Court  of  the  United  States. 

owner's  risk  of  fracture  or  injury  during  the  course  of  transportation, 
loading,  and  unloading,  and  the  court  say:  "The  special  conti-act  here 
set  up  is  not  alleged,  and  could  not  by  law  be  permitted  to  exempt  the 
defendants  from  liability  for  injuries  by  their  own  negligence."  ^ 

To  the  same  purport,  likewise,  are  many  other  decisions  of  the  State 
courts,  some  of  which  are  argued  with  great  force  and  are  worthy  of 
attentive  perusal,  but,  for  want  of  room,  can  only  be  referred  to  here.^ 

These  views  as  to  the  impolicy  of  allowing  stipulations  against  lia- 
bility for  negligence  and  misconduct  are  in  accordance  with  the  early 
English  authorities.  St.  Germain,  in  the  Doctor  and  SUulent^'^  point- 
edly says  of  the  common  carrier:  "If  he  would  percase  refuse  to 
carry  it  [articles  delivered  for  carriage]  unless  promise  were  made 
unto  him  that  he  shall  not  be  charged  for  no  misdemeanor  that  should 
be  in  him,  the  promise  were  void,  for  it  were  against  reason  and  against 
good  manners,  and  so  it  is  in  all  other  cases  like." 

A  century  later  this  passage  is  quoted  by  Attorney-General  Noy  in 
his  book  of  Maxims  as  unquestioned  law.^  And  so  the  law  undoubtedly 
stood  in  England  until  comparatively  a  very  recent  period.  Serjeant 
Stephen,  in  his  Commentaries,^  after  stating  that  a  common  carrier's 
liability  might  at  common  law  be  varied  by  contract,  adds  that  the  law 
still  held  him  responsible  for  negli^'  iice  and  misconduct. 

The  question  arose  in  England  principally  upon  public  notices  given 
by  common  carriers  that  they  would  not  be  responsible  for  valuable 
goods  unless  entei*ed  and  paid  for  according  to  value.  The  courts 
held  that  this  was  a  reasonable  condition,  and  if  bi'ought  home  to  the 
owner,  amounted  to  a  special  contract,  valid  in  law.  But  it  was  also 
held  that  it  could  not  exonerate  the  carrier  if  a  loss  occurred  by  his 
actual  misfeasance  or  gross  negligence.  Or,  as  Starkie  says,  "Proof 
of  a  direct  misfeasance  or  gross  negligence  is,  in  effect,  an  answer  to 
proof  of  notice."^  But  the  term  "gross  negligence"  was  so  vague 
and  uncertain  that  it  came  to  represent  every  instance  of  actual  negli- 
gence of  the  carrier  or  his  servant,  or  ordinary  negligence  in  the  accus- 
tomed mode  of  speaking.'^  Justice  Story,  in  his  work  on  Bailments, 
originally  published   in    1832,  says  that   it  is  now  held  that   in  cases 

1  Id.  556.  &  IVI.  599;  Southern  Express  Co,  v.  Moon,  39 

2  Indianapolis  etc.  R.  Co.  v.  Allen,  31  Ind.  Miss.  822;  New  Orleans  Mutual  Ins.  Co.  v. 
394;  Michigan  R.  Co.  v.  Heaton,  31  Ind.  397,  New  Orleans  etc.  R.  Co.,  20  La.  An.  302. 
note;  Flinn  v.  Philadelphia  R.  Co.,  1  Houst.  a  Dial.  2,  c.  38. 

472;  Orndorff  v.  Adams  Express  Co.,  3  Bush,  <  Noy's  Max.  92. 

194 ;  Swindler  v.  Hilliard,  2  Rich.  L.  286 ;  Berry  6  Vol.  2,  p.  135. 

V.  Cooper,  28  Ga.  543 ;  Steele  v.  Townsend,  «  2  Stark,  on  Ev.  (6th  Am.  ed.)  205. 

37  Ala.  247;  Southern  Express  Co.  v.  Crook,  '  Hinton  v.  Dibbin,  2  Q.  B.  646;  Wyld  v. 

44  Ala.  468;  Whitesides  v.  Thurlkill,  12  Smed.  Pickford,  8  Mec.  &  W.  460. 


390  CONTRACTS    LIMITING    CARRIER'S    LIABILITY. 

Railroad  Company  v.  Lockwood. 

of  such  notices  the  carrier  is  liable  for  losses  and  injury  occasioned 
not  only  by  gross  negligence,  but  by  ordinary  negligence ;  or,  in  other 
words,  the  carrier  is  bound  to  ordinary  diligence.^ 

In  estimating  the  effect  of  these  decisions,  it  must  be  remembered 
that  in  the  cases  covered  by  the  notices  referred  to,  the  exemption 
claimed  was  entire,  covering  all  cases  of  loss,  negligence  as  well  as 
others.     They  are  therefore  directly  in  point. 

In  1863,  in  the  great  case  of  Peek  v.  North  Staffordshire  Railway 
Company,'^  Mr.  Justice  Blackburn,  in  the  course  of  a  very  clear  and 
able  review  of  the  law  on  the  subject,  after  quoting  this  passage  from 
Justice  Story's  work,  proceeds  to  say:  "In  my  opinion,  the  weight  of 
authority  was,  in  1832,  in  favor  of  this  view  of  the  Jaw ;  but  the  cases 
decided  in  our  courts  between  1832  and  1854  established  that  this  was 
not  the  law,  and  that  a  carrier  might,  by  a  special  notice,  make  a  con- 
tract limiting  his  responsibility,  even  in  the  cases  here  mentioned,  of 
gross  negligence,  misconduct,  or  fraud  on  the  part  of  his  servants ; 
and,  as  it  seems  to  me,  the  reason  why  the  Legislature  intervened  in 
the  Railway  and  Canal  Traffic  Act,  in  1854,  was  because  it  thought  that 
the  companies  took  advantage  of  those  decisions  (in  Story's  language) 
'to  evade  altogether  the  salutary  policy  of  the  common  law.'  " 

This  quotation  is  sufficient  to  show  the  state  of  the  law  in  England  at 
the  time  of  the  publication  of  Judge  Story's  work ;  and  it  proves  that 
at  that  time  common  carriers  could  not  stipulate  for  immunitj^  for  their 
own  or  their  servants'  negligence.  But  in  the  case  of  Carr  v.  Lan- 
cashire Railway  Company,^  and  other  cases  decided  whilst  the  change 
of  opinion  alluded  to  by  Justice  Blackburn  was  going  on  (several  of 
which  related  to  the  carriage  of  horses  and  cattle),  it  was  held  that 
carriers  could  stipulate  for  exemption  from  liability  for  even  their  own 
gross  negligence.  Hence  the  act  of  1854  was  passed,  called  the  Rail- 
way and  Canal  Traffic  Act,  declaring  that  railway  and  canal  companies 
should  be  liable  for  negligence  of  themselves  or  their  servants,  not- 
withstanding any  notice  or  condition,  unless  the  court  or  judge  trying 
the  cause  should  adjudge  the  conditions  just  and  reasonable.^  Upon 
this  statute  ensued  a  long  list  of  cases  deciding  what  conditions  were  or 
were  not  just  and  reasonable.  The  truth  is,  that  this  statute  did  little 
more  than  bring  back  the  law  to  the  original  position  in  which  it  stood 
before  the  English  courts  took  their  departure  from  it.  But  as  we 
shall  have  occasion  to  advert  to  this  subject  again,  we  pass  it  for  the 
present. 

1  story  on  Bail.,  §  571.  «  7  Exch.  707. 

2  10  H.  L.  Gas.  473.  4  i  pish.  Dig.  1466. 


IN    CASE    OF    PERSONAL    INJUEIES.  391 

Supreme  Court  of  the  United  States. 

It  remains  to  see  what  has  been  held  by  this  court  on  the  subject  now 
under  consideration. 

We  have  already  referred  to  the  leading  case  of  New  Jersey  Steam 
Navigation  Company  v.  Merchants'  BankA  On  the  precise  point  now 
under  consideration  Justice  Nelson  said :  "  If  it  is  competent  at  all  for 
the  carrier  to  stipulate  for  the  gross  negligence  of  himself  and  his  ser- 
vants or  agents  in  the  transportation  of  goods,  it  should  be  required 
to  be  done,  at  least,  in  terms  that  would  leave  no  doubt  as  to  the 
meaning  of  the  parties." 

As  to  the  carriers  of  passengers,  Mr.  Justice  Grier,  in  the  case  of 
Philadelphia  and  Reading  Railroad  Company  v.  Derby,-  delivei'ing  the 
opinion  of  the  court,  said:  "When  carriers  undertake  to  convey  per- 
sons by  the  powerful  but  dangerous  agency  of  steam,  public  policy  and 
safetj^  require  that  they  be  held  to  the  greatest  possible  care  and  dili- 
gence. And  whether  the  consideration  for  such  transportation  be  pecu- 
niary or  otherwise,  the  personal  safety  of  the  passengers  should  not  be 
left  to  the  sport  of  chance  or  the  negligence  of  careless  agents.  Any 
neghgence  in  such  cases  may  well  deserve  the  epithet  of  'gross.'" 
That  was  the  case  of  a  free  passenger,  a  stockholder  of  the  company, 
taken  over  the  road  by  the  president  to  examine  its  condition ;  and  it 
was  contended  in  argument,  that  as  to  him,  nothing  but  "gross  negli- 
gence" would  make  the  company  Uable.  In  the  subsequent  case  of 
Steamboat  New  World  v.  King,^  which  was  also  the  case  of  a  free  pas- 
senger carried  on  a  steamboat,  and  injured  by  the  explosion  of  the 
boiler,  Curtis,  J.,  delivering  the  judgment,  quoted  the  above  propo- 
sition of  Justice  Grier,  and  said:  "We  desire  to  be  understood  to 
reaffirm  that  doctrine,  as  resting  not  only  on  public  policy,  but  on 
sound  principles  of  law,"^ 

In  York  Company  v.  Central  Railroad  Company,^  the  court,  after 
conceding  that  the  responsibility  imposed  on  the  carrier  of  goods  by  the 
common  law  may  be  restricted  and  qualified  by  express  stipulation, 
adds:  "When  such  stipulation  is  made,  and  it  does  not  cover  losses 
from  negligence  or  misconduct,  we  can  perceive  no  just  reason  for 
refusing  its  recognition  and  enforcement."  In  the  case  of  Walker  v. 
Transportation  Company,^  decided  at  the  same  term,  it  is  true,  the  owner 
of  a  vessel  destroyed  by  fire  on  the  lakes  was  held  not  to  be  responsible 
for  the  negligence  of  the  officers  and  agents  having  charge  of  the 
vessel;  but  that  was  under  the  act  of  1851,  which  the  court  held  to 

1  6  How.  383.  ♦  Id.  474. 

2  14  How.  486:  «.  c.  ante,  p.  31.  »  3  Wall.  118. 
8  16  How.  469;  8.  c.  ante,  p.  175.  •  Id.  150. 


)92  CONTRACTS    LIMITING    CAKRIER's    LIABILITY. 

Railroad  Company  v.  Lockwood. 

apply  to  our  great  lakes  as  well  as  to  the  sea.  And  in  Express  Com- 
pany V.  Kountze  Brotliers^^  where  the  carriers  were  sued  for  the  losi<^ 
oi  gold-dust  delivered  to  them  on  a  bill  of  lading  excluding  liability  for 
any  loss  or  damage  by  fire,  act  of  God,  enemies  of  the  government,  or 
dangers  incidental  to  a  time  of  war,  they  were  held  liable  for  a  robbery 
by  a  predatory  band  of  armed  men  (one  of  the  excepted  risks),  because 
they  negligently  and  needlessly"  took  a  route  which  was  exposed  to  such 
incursions.  The  judge  at  the  trial  charged  the  jury,  that  although  the 
contract  was  legally  sufficient  to  restrict  the  liability  of  the  defendants 
as  common  carriers,  yet  if  they  were  guilty  of  actual  negligence,  they 
were  responsible ;  and  that  they  were  chargeable  with  negligence  unless 
they  exercised  the  care  and  prudence  of  a  prudent  man  in  his  own 
affairs.  This  was  held  by  this  court  to  be  a  correct  statement  of  the 
law.2 

Some  of  the  above  citations  are  only  expressions  of  opinion,  it  is 
true,  but  they  are  the  expressions  of  judges  whose  opinions  are  entitled 
to  much  weight;  and  the  last-cited  case  is  a  judgment  upon  the  precise 
point.  Taken  in  connection  with  the  concurring  decisions  of  State 
courts  before  cited,  they  seem  to  us  decisive  of  the  question,  and  leave 
but  little  to  be  added  to  the  considerations  which  they  suggest. 

It  is  argued  that  a  common  carrier,  by  entering  into  a  special  contract 
with  a  party  for  canying  his  goods  or  person  on  modified  terms,  drops 
his  character  and  becomes  an  ordinary  bailee  for  hire,  and  therefore 
ma3^  make  any  contract  he  pleases.  That  is,  he  may  make  any  contract 
whatever,  because  he  is  an  ordinary  bailee  ;  and  he  is  an  ordinary  bailee 
because  he  has  made  the  contract. 

We  are  unable  to  see  the  soundness  of  this  reasoning.  It  seems  to 
us  more  accurate  to  say  that  common  carriers  are  such  b}'^  virtue  of 
their  occupation,  not  by  virtue  of  the  responsibilities  under  which  they 
rest.  Those  responsibilities  may  vary  in  different  countries  and  at 
different  times  without  changing  the  character  of  the  employment. 
The  common  law  subjects  the  common  carrier  to  insurance  of  the 
goods  carried,  except  as  against  the  act  of  God  or  public  enemies. 
The  civil  law  excepts,  also,  losses  by  means  of  any  superior  force,  and 
any  inevitable  accident.  Yet  the  employment  is  the  same  in  both  cases. 
And  if  by  special  agreement  the  carrier  is  exempted  from  still  other 
responsibilities,  it  does  not  follow  that  his  emploj^ment  is  changed,  bui 
only  that  his  responsibilities  are  changed.  The  theory  occasional!}- 
announced,  that  a  special  contract  as  to  the  terms  and  responsibilities 

1  8  Wall.  342.  2  jd.  353. 


IN    CASE    OF    PERSONAL    INJURIES.  39S 

Supreme  Court  of  the  United  States. 

of  carriage  changes  the  nature  of  the  employment,  is  calculated  to 
mislead.  The  responsibilities  of  a  common  carrier  may  be  reduced  to 
those  of  an  ordinary  bailee  for  hire,  whilst  the  nature  of  his  business 
renders  him  a  common  earlier  still.  Is  there  any  good  sense  in  holding 
that  a  railroad  company,  whose  only  business  is  to  carry  passengers  and 
goods,  and  which  was  created  and  established  for  that  purpose  alone,  is 
changed  to  a  private  carrier  for  hire  by  a  mere  contract  with  a  cus- 
tomer, whereby  the  latter  assumes  the  risks  of  inevitable  accidents  in 
the  carriage  of  his  goods?  Suppose  the  contract  relates  to  a  single 
crate  of  glass  or  crockery,  whilst  at  the  same  time  the  carrier  receives 
from  the  same  person  twenty  other  parcels,  respecting  which  no  such 
contract  is  made  ;  is  the  company  a  public  carrier  as  to  the  twenty 
parcels,  and  a  private  carrier  as  to  the  one  ? 

On  this  point  there  are  several  authorities  which  support  our  view, 
some  of  which  are  noted.  ^ 

A  common  carrier  may  undoubtedly  become  a  private  carrier,  or  a 
bailee  for  hire,  when,  as  a  matter  of  accommodation  or  special  engage- 
ment, he  undertakes  to  carry  something  which  it  is  not  his  business  to 
carry.  For  example,  if  a  carrier  of  produce,  running  a  truck-boat 
between  New  York  City  and  Norfolk,  should  be  requested  to  carry  a 
keg  of  specie  or  a  load  of  expensive  furniture,  which  he  could  justly 
refuse  to  take,  such  agreement  might  be  made  in  reference  to  his  taking 
and  carrying  the  same  as  the  parties  chose  to  make,  not  involving  any 
stipulation  contrary  to  law  or  public  policy.  But  when  a  carrier  has  a 
regularly  established  business  for  canning  all  or  certain  articles,  and 
especially  if  that  carrier  be  a  corporation  created  for  the  purpose  of  the 
carrying  trade,  and  the  carriage  of  the  articles  is  embraced  within  the 
scope  of  its  chartered  powers,  it  is  a  common  carrier,  and  a  special 
contract  about  its  responsibility  does  not  divest  it  of  the  character. 

But  it  is  contended,  that  though  a  carrier  may  not  stipulate  for  his 
own  negligence,  there  is  no  good  reason  why  he  should  not  be  permitted 
to  stipulate  for  immunity  for  the  negligence  of  his  servants,  over  whose 
actions  in  his  absence  he  can  exercise  no  control.  If  we  advert  for  a 
moment  to  the  fundamental  principles  on  which  the  law  of  common 
carriers  is  founded,  it  will  be  seen  that  this  objection  is  inadmissible. 
In  regulating  the  public  establishment  of  common  carriers,  the  great 
object  of  the  law  was  to  secui'e  the  utmost  care  and  diligence  in  the 
performance  of  their  important  duties,  —  an  object  essential  to  the  wel- 
fare of  every  civilized  community.     Hence  the  common-law  rule  which 

'  Davidson  v.  Graham,  2  Ohio  St.  1.31 ;  Graham  v.  Davis,  4  Ohio  St.  .362 ;  Swindler  v.  Hilliard, 
2  Rich.  L.  2S6;  Balier  v.  Brinson,  9  Rich.  L.  201 ;  Steele  v.  Townsend,  37  Ala.  247. 


394  CONTRACTS    LIMITING    CARRIER'S    LIABILITY. 

Railroad  Company  v.  Lockwood. 

charged  the  common  carrier  as  an  insurer.  Wli}^  charge  him  as  such? 
Plainly  for  the  purpose  of  raising  the  most  stringent  motive  for  the 
exercise  of  carefulness  and  fidelity  in  his  trust.  In  regard  to  pas- 
sengers, the  highest  degree  of  carefulness  and  diligence  is  expressly 
exacted.  In  the  one  case,  the  securing  of  the  most  exact  diligence  and 
fidelity  underlies  the  law,  and  is  the  reason  for  it ;  in  the  other,  it  is 
directly  and  absolutely  prescribed  by  the  law.  It  is  obvious,  therefore, 
that  if  a  carrier  stipulate  not  to  be  bound  to  the  exercise  of  care  and 
diligence,  but  to  be  at  liberty  to  indulge  in  the  contrary,  he  seeks  to 
put  off  the  essential  duties  of  his  employment.  And  to  assert  that  he 
may  do  so  seems  almost  a  contradiction  in  terms. 

Now,  to  what  avail  does  the  law  attach  these  essential  duties  to  the 
employment  of  the  common  carrier  if  they  may  be  waived  in  respect  to 
his  agents  and  servants,  especially  where  the  carrier  is  an  artificial  being, 
incapable  of  acting  except  by  agents  and  servants?  It  is  carefulness 
and  diligence  in  performing  the  service  which  the  law  demands,  not  an 
abstract  carefulness  and  diligence  in  proprietors  and  stockholders  who 
take  no  active  part  in  the  business. 

To  admit  such  a  distinction  in  the  law  of  common  carriers,  as  the 
business  is  now  carried  on,  would  be  subversive  of  the  very  object  of 
the  law. 

It  is  a  favorite  argument  in  the  cases  which  favor  the  extension  of  the 
carrier's  right  to  contract  for  exemption  from  liabilit}^  that  men  must 
be  permitted  to  make  their  own  agreements,  and  that  it  is  no  concern  of 
the  public  on  what  terms  an  individual  chooses  to  have  his  goods  carried. 
Thus,  in  Dorr  v.  New  Jersey  Steam  Naoigation  Company ^^  the  court  sums 
up  its  judgment  thus:  "To  say  the  parties  have  not  a  right  to  make 
their  own  contract,  and  to  limit  the  precise  extent  of  their  own  respec- 
tive I'isks  and  liabilities,  in  a  matter  no  way  affecting  the  public  morals 
<ir  conflicting  with  the  public  interests,  would,  in  my  judgment,  be  an 
unwarrantable  restriction  upon  trade  and  commerce,  and  a  most  palpable 
invasion  of  personal  right." 

Is  it  true  that  the  public  interest  is  not  affected  by  individual  contracts 
of  the  kind  referred  to?  Is  not  the  whole  business  communit}'  affected 
bj'  holding  such  contracts  valid?  If  held  valid,  the  advantageous  posi- 
tion of  the  companies  exercising  the  business  of  common  carriers  is  such 
that  it  places  it  in  their  power  to  change  the  law  of  common  carriers  in 
effect,  by  introducing  new  rules  of  obligation. 

The  carrier  and  his  customer  do  not  stand  on  a  footing  of  equality. 

1  11  N.  Y.  485. 


IN    CASE    OF    PERSONAL    INJURIES.  395 

Supreme  Court  of  the  United  States. 

The  latter  is  only  one  individual  of  a  million.  He  cannot  afford  to 
higgle  or  stand  out  and  seek  redress  in  the  courts.  His  business  will 
not  admit  such  a  course.  He  prefers,  rather,  to  accept  any  bill  of 
lading,  or  sign  any  paper  the  carrier  presents ;  often,  indeed,  without 
knowing  what  the  one  or  the  other  contains.  In  most  cases  he  has  no 
alternative  but  to  do  this  or  abandon  his  business.  In  the  present  case, 
for  example,  the  freight-agent  of  the  company  testified  that  though  they 
made  forty  or  fifty  contracts  every  week  like  that  under  considera 
tion,  and  had  carried  on  the  business  for  years,  no  other  arrangement 
than  this  was  ever  made  with  any  drover.  And  the  reason  is  obvious 
enough,  — if  they  did  not  accept  this,  they  must  pay  tariff  rates.  These 
rates  were  seventy  cents  a  hundred  pounds  for  carrying  from  Buffalo 
to  Albany,  and  each  horned  animal  was  rated  at  2,000  pounds,  making 
a  charge  of  $14  for  every  animal  carried,  instead  of  the  usual  charge 
of  $70  for  a  car-load  ;  being  a  difference  of  three  to  one.  Of  course 
no  drover  could  afford  to  pay  such  tariff  rates.  This  fact  is  adverted 
to  for  the  purpose  of  illustrating  how  completely  in  the  power  of  the 
railroad  companies  parties  are,  and  how  necessary  it  is  to  stand  firmly 
by  those  principles  of  law  by  which  the  public  interests  are  protected. 

If  the  customer  had  any  real  freedom  of  choice,  if  he  had  a  reason- 
able and  practicable  alternative,  and  if  the  employment  of  the  carrier 
were  not  a  public  one,  charging  him  with  the  duty  of  accommodating 
the  public  in  the  line  of  his  employment,  then,  if  the  customer  chose 
to  assume  the  risk  of  negligence,  it  could  with  more  reason  be  said  to 
be  his  private  affair,  and  no  concern  of  the  public.  But  the  condition 
of  things  is  entirely  different,  and  especially  so  under  the  modified 
arrangements  which  the  carrying  trade  has  assumed.  The  business 
is  mostly  concentrated  in  a  few  powerful  corporations,  whose  position  in 
the  body-politic  enables  them  to  control  it.  They  do,  in  fact,  control 
it,  and  impose  such  conditions  upon  travel  and  transportation  as  they 
see  fit,  which  the  public  is  compelled  to  accept.  These  circumstances 
furnish  an  additional  argument,  if  any  were  needed,  to  show  that  the 
conditions  imposed  by  common  carriers  ought  not  to  be  adverse  (to  say 
the  least)  to  the  dictates  of  public  policy  and  morality.  The  status  and 
relative  position  of  the  parties  render  any  such  conditions  void.  Con- 
tracts of  common  carriers,  like  ttiose  of  persons  occupying  a  fiduciary 
character,  giving  them  a  position  in  which  they  <jan  take  undue  advan- 
tage of  the  persons  with  whom  they  contract,  must  rest  upon  their 
fairness  and  reasonableness.  It  was  for  the  reason  that  the  limitations 
of  liability  first  introduced  by  common  carriers  into  their  notices  and 
bills  of  lading  were  just  and  reasonable,  that  the  courts  sustained  them. 


396  CONTRACTS    LIMITING    CARRIEK'S    LIABILITY. 

Railroad  Company  v.  Lockwood. 

It  wns  just  and  reasonable  that  they  should  not  be  responsible  for  losses 
happening  by  sheer  accident,  or  dangers  of  navigation  that  no  human 
skill  or  vigilance  could  guard  against ;  it  was  just  and  reasonable  that 
they  should  not  be  chargeable  for  money  or  other  valuable  articles  liable 
to  be  stolen  or  damaged,  unless  apprised  of  their  character  or  value ;  it 
was  just  and  reasonable  that  they  should  not  be  responsible  for  articles 
liable  to  rapid  decay,  or  for  live  animals  liable  to  get  unruly  from  fright, 
and  to  injure  themselves  in  that  state,  when  such  articles  or  live  animals 
became  injured  without  their  fault  or  negligence.  And  when  any  of 
these  just  and  reasonable  excuses  were  incorporated  into  notices  or 
special  contracts  assented  to  by  their  customers,  the  law  might  well  give 
effect  to  them  without  the  violation  of  any  important  principle,  although 
modifying  the  strict  rules  of  responsibility  imposed  by  the  common  law. 
The  improved  state  of  society  and  the  better  administration  of  the  laws 
had  diminished  the  opportunities  of  collusion  and  bad  faith  on  the  part 
of  the  carrier,  and  rendered  less  imperative  the  application  of  the  iron 
rule  that  he  must  be  responsible  at  all  events.  Hence  the  exemptions 
referred  to  were  deemed  reasonable  and  proper  to  be  allowed.  But  the 
proposition  to  allow  a  public  carrier  to  abandon  altogether  his  obliga- 
tions to  the  public,  and  stipulate  for  exemptions  that  are  unreasonable 
and  improper,  amounting  to  an  abdication  of  the  essential  duties  of  his 
employment,  would  never  have  been  entertained  by  the  sages  of  the 
law. 

Hence,  as  before  remarked,  we  regard  the  English  statute,  called  the 
Railway  and  Canal  Traffic  Act,  passed  in  1854,  which  declared  void  all 
notices  and  conditions  made  by  common  carriers,  except  such  as  the 
judge  at  the  trial,  or  the  courts,  should  hold  just  and  reasonable,  as 
substantially  a  return  to  the  rules  of  the  common  law.  It  would  have 
been  more  strictly  so,  perhaps,  had  the  reasonableness  of  the  contract 
been  referred  to  the  law,  instead  of  the  individual  judges.  The  deci- 
sions made  for  more  than  half  a  century  before  the  courts  commenced 
the  abnormal  course  which  led  to  the  necessity  of  that  statute,  giving 
effect  to  certain  classes  of  exemptions  stipulated  for  by  the  carrier, 
may  be  regarded  as  authorities  on  the  question  as  to  what  exemptions 
are  just  and  reasonable.  So  the  decisions  of  our  own  courts  are  entitled 
to  like  effect  when  not  made  under  the  fallacious  notion  that  every 
special  contract  imposed  by  the  common  carrier  on  his  customers  must 
be  carried  into  effect,  for  the  simple  reason  that  it  was  entered  into 
without  regard  to  the  character  of  the  contract  and  the  relative  situa- 
tion of  the  parties. 

Conceding,  therefore,  that  special  contracts  made  by  common  car- 


IN    CASE    OF    PERSONAL    INJURIES.  397 

Supreme  Court  of  the  United  States. 

riers  with  their  customers,  limiting  their  liability,  are  good  and  valid,  so 
far  as  they  are  just  and  reasonable,  —  to  the  extent,  for  example,  of 
excusing  them  for  all  losses  happening  by  accident,  without  any  negli- 
gence or  fraud  on  their  part,  —  when  they  asked  to  go  still  further,  and  to 
be  excused  from  negligence,  an  excuse  so  repugnant  to  the  law  of 
their  foundation  and  to  the  public  good,  they  have  no  longer  any  plea 
of  justice  or  reason  to  support  such  a  stipulation,  but  the  contrary. 
And  then,  the  inequality  of  the  parties,  the  compulsion  under  which 
the  customer  is  placed,  and  the  obligations  of  the  carrier  to  the  public, 
operate  with  full  force  to  divest  the  transaction  of  validity. 

On  this  subject,  the  remarks  of  Chief  Justice  Redfield,  in  his  recent 
collection  of  American  Railway  Cases,  seem  to  us  eminently  just.  "It 
being  clearly  established,  then,"  says  he,  "that  common  carriers  have 
public  duties  which  they  are  bound  to  discharge  with  impartiality,  we 
must  conclude  that  they  cannot,  either  by  notices  or  special  contracts, 
release  themselves  from  the  performance  of  these  public  duties,  even 
by  the  consent  of  those  who  employ  them ;  for  all  extortion  is  done  by 
the  apparent  consent  of  the  victim.  A  public  officer  or  servant  who 
has  a  monopoly  in  his  department  has  no  just  right  to  impose  onerous 
and  unreasonable  conditions  upon  those  who  are  compelled  to  employ 
him."  And  his  conclusion  is,  that,  notwithstanding  some  exceptional 
decisions,  the  law  of  to-day  stands  substantially  as  follows:  "  1.  That 
the  exemption  claimed  by  carriers  must  be  reasonable  and  just;  other- 
wise it  will  be  regarded  as  extorted  from  the  owners  of  the  goods  by 
duress  of  circumstances,  and  therefore  not  binding.  2.  That  every 
attempt  of  carriers,  by  general  notices  or  special  contract,  to  excuse 
themselves  from  responsibility  for  losses  or  damages  resulting  in  any 
degree  from  their  own  want  of  care  and  faithfulness,  is  against  that 
good  faith  which  the  law  requires  as  the  basis  of  all  contracts  or 
employments,  and,  therefore,  based  upon  principles  and  a  policy  which 
the  law  will  not  uphold." 

The  defendants  endeavor  to  make  a  distinction  between  gross  and 
ordinary  negligence,  and  insist  that  the  judge  ought  to  have  charged 
that  the  contract  was  at  least  effective  for  excusing  the  latter. 

We  have  already  adverted  to  the  tendency  of  judicial  opinion  adverse 
to  the  distinction  between  gross  and  ordinary  negligence.  Strictly 
speaking,  these  expressions  are  indicative  rather  of  the  degree  of  care 
and  diligence  which  is  due  from  a  party,  and  which  he  fails  to  perform, 
than  of  the  amount  of  inattention,  carelessness,  or  stupidity  which  he 
exhibits.  If  very  little  care  is  due  from  him,  and  he  fails  to  bestow 
that  little,  it  is  called  gross  negligence.     If  very  great  care  is  due,  and 


398  CONTRACTS    LIMITING    CARRIER'S    LIABILITY. 

Railroad  Company  v.  Lockwood. 

he  fails  to  come  up  to  the  mark  required,  it  is  called  slight  negligence. 
And  if  ordinary  care  is  due,  such  as  a  prudent  man  would  exercise  in 
his  own  affairs,  failure  to  bestow  that  amount  of  care  is  called  ordinary 
negligence.  In  each  case,  the  negligence,  whatever  epithet  we  give  it, 
is  failure  to  bestow  the  care  and  skill  which  the  situation  demands ;  and 
lionce  it  is  more  strictly  accurate,  perhaps,  to  call  it  simply  "  negligence." 
And  this  seems  to  be  the  tendency  of  modern  authorities.^  If  they 
mean  more  than  this,  and  seek  to  abolish  the  distinction  of  degrees  of 
care,  skill,  and  diligence  required  in  the  performance  of  various  duties, 
and  the  fulfilment  of  various  contracts,  we  think  they  go  too  far ;  since 
the  requirement  of  different  degrees  of  care  in  different  situations  is 
too  firmly  settled  and  fixed  in  the  law  to  be  ignored  or  changed.  The 
compilers  of  the  French  Civil  Code  undertook  to  abolish  these  distinc- 
tions by  enacting  that  "  every  act  whatever  of  man  that  causes  damage 
to  another,  obliges  him  by  whose  fault  it  happened  to  repair  it."  ^ 
TouUier,  in  his  Commentary  on  the  Code,  regards  this  as  a  happy 
thought,  and  a  return  to  the  law  of  nature. ^  But  such  an  iron  rule 
is  too  regardless  of  the  foundation  principles  of  human  duty,  and 
must  often  operate  with  great  severity  and  injustice. 

In  the  case  before  us,  the  law,  in  the  absence  of  special  contract, 
fixes  the  degree  of  care  and  diligence  due  from  the  railroad  company  to 
the  persons  carried  on  its  trains.  A  failure  to  exercise  such  care  and 
diligence  is  negligence.  It  needs  no  epithet  properly  and  legally  to 
describe  it.  If  it  is  against  the  policy  of  the  law  to  allow  stipulations 
wliich  will  relieve  the  company  from  the  exercise  of  that  care  and 
diligence,  or  which,  in  other  words,  will  excuse  them  for  negligence 
in  the  performance  of  that  duty,  then  the  company  remains  liable  for 
such  negligence. 

The  question  whether  the  company  was  guilty  of  negligence  in  this 
case,  which  caused  the  injury  sustained  by  the  plaintiff,  was  fairly  left 
to  the  jury.  It  was  unnecessary  to  tell  them  whether,  in  the  language 
of  law-writers,  such  negligence  would  be  called  gross  or  ordinary. 

The  conclusions  to  which  we  have  come  are :  — 

First,  That  a  common  carrier  cannot  lawfully  stipulate  for  exemption 
from  responsibility,  when  such  exemption  is  not  just  and  reasonable  in 
the  eye  of  the  law. 

Secondly,  That  it  is  not  just  and  reasonable  in  the  eye  of  the  law  for 

1  1  Smith's  Ld.  Cas.  (7th  Am.  ed.)  453 ;  Story  General  Iron  Screw  CoHier  Co.,  L.  R.  1  C.  P. 

on  Bail.,  §  571;  Wyld  v.  Pickford,  8  Mee.  &  600;  PhUa.  etc.  R.  Co.  v.  Derby,  14  How.  486; 

W.  443;  Hintonv.Dibbin,  2  Q.B. 661;  Wilson  s.  c.  ante,  p.  31;  Steamboat  New  World  v. 

V.  Brett,  11  Mee.   &  W.   115;  Beal  v.  South  King,  16  How.  474;  s.  c.  ante,  p.  175. 
Devon  R.  Co.,  3  Hurl.  &  Colt.  337;  Grill  v.  2  Art.  1382.  »  Vol.  6,  p.  243. 


IN    CASE    OF    PERSONAL    INJURIES.  399 


Notes. 


a  common  carrier  to  stipulate  for  exemption  from  responsibility  for  the 
negligence  of  himself  or  his  servants. 

Thirdly^  That  these  rules  apply  both  to  carriers  of  goods  and  carriers 
of  passengers  for  hire,  and  with  special  force  to  the  latter. 

Fourthly,  That  a  drover  travelling  on  a  pass,  such  as  was  given  in 
this  case,  for  the  purpose  of  taking  care  of  his  stock  on  the  train,  is  a 
passenger  for  hire. 

These  conclusions  decide  the  present  case,  and  require  a  judgment  of 
affirmance.  We  purposely  abstain  from  expressing  any  opinion  as  to 
what  would  have  been  the  result  of  our  judgment  had  we  considered 
the  plaintiff  a  free  passenger  instead  of  a  passenger  for  hire. 

Judgment  affirmed. 


NOTES. 

§  1 .  Validity  of  Contract  limiting  Liability  of  Carrier  to  Passenger  travel- 
ling upon  a  Free  Pass.  —  The  principle  is  well  settled  that  a  carrier  owes  the 
same  duty  of  protection  to  a  simply  gratuitous  passenger  as  to  a  passenger  for 
hire.i  It  is  customary,  however,  for  railway  companies  to  insert  in  free  passes  a 
stipulation  whereby  the  passenger  agrees  to  exempt  the  carrier  from  liability  for 
every  species  of  injury  resulting  from  any  cause  whatever.  Contracts  of  this 
character  are  generally  to  the  effect  that  "  the  person  accepting  this  free  ticket, 
in  consideration  thereof,  assumes  all  risk  of  all  accidents,  and  expressly  agrees 
that  the  company  shall  not  be  liable,  under  any  circumstances,  whether  of  negli- 
gence by  their  agents  or  otherwise,  for  any  injury  to  the  person  or  for  any  loss 
or  injury  to  the  property  of  the  passenger  using  the  ticket."  The  validity  of  this 
contract  is  in  some  cases  denied  in  toto,  as  being  void  because  against  public 
policy.* 

The  considerations  upon  which  such  a  view  of  the  contract  is  taken  are,  that 
although  it  may  be  true  as  a  general  proposition  that  a  person  may  waive  a  pro- 
vision or  rule  of  law  intended  for  his  benefit,  yet  the  State  has  an  interest  as 
parens  patrice  in  the  preservation  of  the  lives  of  its  citizens,  and  that  a  contract 
of  this  character  is  void  for  the  reason  that  the  life  of  a  person  accepting  its 
benefits  is  placed  in  jeopardy  because  of  the  relaxation  of  the  strict  rule  of 
responsibility  on  the  part  of  common  carriers  (the  outgrowth  of  public  policy)  ; 

1  Phila.  etc.  R.  Co.  v.  Derby,  ante,  p.  31;  lowing  etatnte:  "Every  railroad  company 
Steamboat  New  World  v.  King,  ante,  p.  175;  ehail  be  liable  for  all  damages  sustained  by 
Indianapolis.etc.R.  Co. ».  Beaver,  41  Ind.  493.  any  person,    including   employees    of   the 

2  Jacobus  V.  St.  Paul  etc.  R.  Co.,  20  Minn.  company,  in  consequence  of  any  neglect  of 
125;  s.  c.  1  Cent.  L.  J.  375;  Indiana  etc.  R.  the  agents  or  by  any  mismanagement  of  the 
Co.  V.  Mundy,  21  Ind.  48;  Knowlton  v.  Erie  engineers  or  other  employees  of  the  corpo- 
R.  Co.,  19  Ohio  St.  260.  See  also  Railway  Co.  ration,  to  any  person  sustaining  such  dam- 
».  Stevens,  95  U.  S.  655, 660;  Lackawanna  etc.  age,  all  contracts  to  the  contrary  notwith- 
R.  Co.  V.  Chenewith,  52  Pa.  St.  382.  In  Iowa,  standing."  Rose  r.  Des  Moines  etc.  R.  Co.,  S* 
such  a  contract  is  rendered  void  by  the  fol-  Iowa,  2-16,  250. 


400  CONTRACTS   LIMITING   CARRIER'S   LIABILITY. 


Notes. 


and  further,  because  the  influence  of  such  a  contract  is  demoralizing,  as  tending 
to  lessen  the  care  of  the  company  and  its  servants  for  the  safety  of  other  pas- 
sengers.' 

On  the  other  hand,  it  is  said  that  the  mere  fact  that  a  man's  occupation  is  that 
of  a  common  carrier  should  not  prevent  him  from  being  able  to  make  a  bargain 
■with  another  as  a  gratuitous  bailee,  and  that  railway  companies  and  other  cor- 
porations should  have  this  privilege.  "  I  fully  agree  with  the  able  opinion  of  the 
Supreme  Court  that  the  contract  now  under  consideration  was  not  made  with 
the  defendants  in  their  character  as  common  carriers.  The  deceased  did  not 
choose  to  bargain  with  them  in  their  general  employment,  in  which  they  hold 
themselves  ready  to  transport  passengers  for  hire,  but  asked  and  accepted  from 
them  a  gratuity."^  In  the  late  case  of  Bailway  Company  v.  Stevens,^  the  court 
did  not  find  it  necessary  to  pass  upon  this  point.  Bradley,  J.,  said:  "It  is 
often  asked  with  apparent  confldence,  '  May  not  men  make  their  own  contracts ; 
or,  in  other  words,  may  not  a  man  do  what  he  will  with  his  own? '  The  question 
at  first  sight  seems  a  simple  one.  But  there  is  a  question  lying  behind  that : 
'  Can  a  man  call  that  absolutely  his  own  which  he  holds  as  a  great  public  trust, 
by  the  public  grant,  and  for  the  public  use  as  well  as  his  own  profit?'  The 
business  of  the  common  carrier,  in  this  country  at  least,  is  emphatically  a  branch 
of  the  public  service ;  and  the  conditions  on  which  that  public  service  shall  be 
performed  by  private  enterprise  are  not  yet  entirely  settled."  In  Great  Britain, 
however,  there  seems  to  be  no  objection  to  contracts  of  this  character  on  the 
ground  that  they  are  contrary  to  public  policy.* 

§  2.  Drovers'  Passes. — When  stock  is  shipped  upon  a  railroad,  it  is  customary 
to  present  the  person  in  charge  and  his  assistants  with  "  drovers'  passes,"  which 
generally  entitle  the  holder  to  accompany  the  stock  to  their  destination  and 
return.  Such  passes  contain  the  usual  stipulation  that  the  person  using  the 
same  holds  the  company  exempt  from  responsibility  for  all  injuries  caused  by 
the  negligence  of  the  company  or  its  servants.  The  cases  are  not  harmonious 
as  to  the  status  of  a  person  using  a  pass  of  this  kind.  By  some  courts  the  holder 
is  regarded  as  a  passenger  for  hire,  by  reason  of  the  contemporaneous  contract 
for  carriage  of  cattle,  and,  notwithstanding  such  release,  competent  to  claim  the 
protection  due  to  other  passengers  who  have  paid  the  regular  fare.  In  the  view 
of  others,  the  holder  of  such  a  pass  enjoys  a  mere  gratuity  or  concession  on  the 
part  of  the  railroad  company,  and  therefore  is  bound  "Ijy  the  release,  the  only 
question  in  such  cases  being  the  construction  of  the  release,  — e.g.,  whether  the 
railroad  company  wUl  be  relieved,  by  virtue  of  its  terms,  from  the  consequences 
of  gross  negligence. 

The  decision  in  Bailroad  Company  v.  Lockwood  ^  is  based  on  the  grouna  that 

>  Jacobus  V.  St.  Paul  etc.  E.  Co.,  supra.  '  95  U.  S.  655,  660. 

But  contra,  see  Kinney  v.  Central  R.  Co.,  34  *  McCawley  v.  Furness  R.  Co.,  L.  R.  8  Q.  B. 

N.  J.  L.  513,  516;  s.  c.  32  N.  J.  L.  407;  Wells  v.  67;  8.  c.  42  L.  J.  (Q.  B.)  4;  21  Week.  Rep.  140; 

New  York  etc.  R.  Co.,  24  N.  Y.  181, 185.  27  L.  T.  (N.  s.)  485;  Gallin  v.  London  etc.  B. 

«  Van  Syckel,  J.,  in  Kinney  v.  Central  R.  Co.,  L.  R.  10  Q.  B.  212;  s.  c.  44  L.  J.  (Q.  B.)  89; 

Co.,  a4  N.  J.  L.  513,  515 ;  s.  c.  32  N.  J.  L.  407.  23  Week.  Rep.  308 ;  32  L.  T.  (N.  8.)  550 ;  2  Cent. 

See  also  Bissell  v.  New  York  etc.  R.  Co.,  25  L.  J.  217;    Duff  v.   Great  Northern   R.  Co. 

N.  Y.  442;  Perkins  v.  New  York  etc.  R.  Co.,  (Irish  High  Ct.  Just.,  Exch.  Div.,  February 

34  N.  Y.  196;  WeUs  v.  New  York  etc.  R.  Co.,  19, 1379),  41  L.  T.  (N.  8.)  197;  a.  c.  20  Alb.  L. 

24  N.  Y.  181 ;  Knowlton  v.  Erie  R.  Co.,  19  Ohio  J.  398. 

St.  260.  6  ^„<e,  p.  378. 


IN    CASE    OF    PERSONAL    INJURIES.  401 


Stipulations  in  Drovers'  Passes. 

the  plaintiff  was  a  customer,  having  no  reasonable  and  practicable  alternative  of 
transacting  his  business  other  than  by  accepting  such  a  pass,  and  that  the  ine- 
quality of  the  parties,  the  compulsion  under  which  the  customer  is  placed,  and 
the  obligations  of  the  carrier  to  the  public,  operate  vrith  full  force  to  divest  the 
transaction  of  validity.  Precisely  this  conclusion,  on  identical  facts,  has  been 
reached  in  other  cases.i  But  in  Bissell  v.  New  York,  etc.  Bailroad  Company  ' 
the  contrary  view  was  taken.  Smith,  J.,  held  that  there  was  no  consideration, 
in  the  technical  sense  of  the  term,  arising  out  of  the  contract  of  carriage  of  cat- 
tle which  could  constitute  a  consideration  for  the  ordinary  drovers'  pass,  thereby 
rendering  the  person  carried  upon  it  a  passenger  for  hire,  saying:  "It  is  un- 
doubtedly true  that  he  received  such  free  ticket,  and  it  was  given  him  by  the 
defendants  in  consideration  of  the  business  and  profits  received  from  him  from 
the  freight  of  the  stock  which  he  accompanied.  So,  in  all  cases  when  free 
tickets  are  given,  I  suppose  there  is  some  consideration  Qf  interest  or  profit  or 
advantage  received  or  expected,  which  constitutes  the  inducement  to  the  giving 
of  the  ticket.  In  this  sense,  there  would  probably  seldom  if  ever  be  given  by  a 
railroad  company  a  strictly  free  ticket."  From  this  view  Denio,  C.  J.,  Suther- 
land and  Wright,  JJ.,  dissented. 

Previous  to  this  decision,  and  in  the  same  year,  this  court  had  held,  in  the  case 
of  Smith  V.  New  York,  etc.  Railroad  Company,'^  that  a  person  travelling  upon  a 
drover's  pass  was  not  to  be  regarded  as  a  gratuitous  passenger.  It  may  now  be 
considered  as  the  settled  law  of  this  State  that  a  person  riding  on  such  a  pass  is 
not  to  be  considered  as  a  passenger  for  hire ;  at  least  this  position  is  not  ques- 
tioned in  subsequent  cases  of  this  character.*  And  such  would  seem  to  be  the 
law  of  England.* 

'  Cleveland  etc.  R  Co.  v.  Curran,  19  Ohio  agents  or  otherwise,"  for  the  purpose  r . 
St.  1;  Ohio  etc.  R.  Co.  v.  Selby,  47  Ind.  471;  seeing  the  superintendent  of  the  road  in  re- 
Pennsylvania  R.  Co.  V.  Henderson,  51  Pa.  St.  gard  to  introducing  a  patent  car- coupling  of 
315;  Flynn  v.  Phila.  etc.  R.  Co.  1  Houst.  which  the  plaintiff  was  the  inventor.  The 
469.  In  Graham  v.  Pacific  R.  Co.,  66  Mo.  defendants  had  agreed  to  pay  the  plaintiff's 
536,  the  plaintiff  accompanied  a  load  of  expenses  upon  this  trip,  and  incidentally 
stock  to  St.  Louis  upon  a  di-over's  pass  to  St.  thereto  had  given  him  this  pass.  Bradley, 
Louis  and  return.  On  his  return,  he  got  upon  J.,  was  of  opinion  that  the  transportation  of 
an  accommodation-train  which  stopped  short  the  plaintiff  was  in  no  sense  a  matter  of 
of  the  point  designated  in  the  pass,  his  in-  charity  or  gratuity.  The  plaintiff  was  a  pas- 
tention  being  to  stop  at  a  way-station.  The  senger  for  hire,  and  as  such  entitled  to  all 
conductor  refused  to  honor  this  pass  upon  the  rights  of  other  passengers,  notwith- 
his  train,  and  for  non-payment  of  fare  he  standing  the  stipulation  upon  the  pass. 
was  put  off.  A  verdict  for  the  plaintiff  was  -  25  N.  Y.  442,  453  (reversing  s.  c.  29  Barb. 
sustained.  The  same  court  has  held  that  a  602).  See  also  Boswell  v.  Hudson  etc.  R.  Co., 
pass  obtained  by  a  drover  for  his  wife,  on  the  10  Abb.  Pr.  442. 
fraudulent  representation  that  she  owned  a  ^  24  N.  Y.  222;  s.  c.  29  Barb.  132. 
portion  of  the  stock  which  he  had  shipped,  *  Stinson  v.  New  York  etc.  R.  Co.,  32  N.  Y. 
confers  no  rights  upon  her.  Brown  v.  Mis-  333;  Poucher  v.  New  Y'ork  etc.  R.  Co.,  49  N. 
souri  etc.  R.  Co.,  64  R[o.  536.    See  also  Rail-  Y.  263. 

way  Co.  V.  Stevens,  95  U.  S.  6.55,  in  which  case  ^  McCawIey  v.  Furness  R.  Co.,  L.  R.  8  Q. 

the  court  realUrmed  its  decision  in  Railroad  B.  57;  «.  c.  42  L.  J.  (Q.  B.)  4;  21  Week.  Rep. 

Co.  V.  Lockwood,  supra.    The  facts  of  this  140;  27  L.  T.  (N.  8.)  485  ;  Gallin  v.  London  etc. 

case  were  that  the  plaintiff,  at  the  request  of  K.  Co.,  L.  R.  10  Q.  B.  212 ;  s.  c.  44  L.  J.  (Q.  B.) 

the  defendants,   was  travelling  upon  their  89;  23  Week.  Rep.  308;  32  L.  T.  (N.  s.)  550;  2 

line  upon  a  free  pass  exempting  the  company  Cent.  L.  J.  217;   Duff  v.  Great  Northern  R. 

from  the  consequences  of  "  negligence  by  its  Co.,  41  L.  T.  (N.  8.)  197;  8.  c.  20  Alb.  L.  J.  398. 

26 


402  CONTRACTS    LIMITING    CARRIER'S    LIABILITY. 


Notes. 


§  3.  What  Negligence  is  covered  by  such  a  Release.  —  When  it  is  settled 
that  the  contract  of  release  contained  in  a  free  pass  is  not  against  public  policy, 
the  question  arises,  What  negligence  is  covered  by  its  terms?  Upon  this  point, 
also,  there  is  a  conflict  of  authority.  Although  a  company  may  stipulate  for  an 
exemption  from  the  consequences  of  negligence  of  its  servants,  yet  it  cannot  do 
so  in  regard  to  negligence  which  is  imputable  to  the  corporation  itself.^  In 
Bissell  V.  New  York,  etc.  Bailroad  Company,'^  the  Supreme  Court  held  that  gross 
negligence  could  not  be  excused  by  contract,  in  reference  to  passengers  for  hire; 
but  the  Court  of  Appeals  took  a  different  view,  holding  the  person  injured  in 
this  case  was  not  a  passenger  for  hire,  and  that  the  company  were  shielded  by 
the  contract  from  the  consequences  of  even  gross  negligence  on  the  part  of  its 
servants.  And  this  is  the  rule  in  England  in  regard  to  this  phase  of  the  con- 
tract.' In  Kinney  v.  Central  Railroad  Company,*^  it  was  not  expressly  decided 
that  "gross"  negligence  would  be  included  in  such  a  contract,  but  the  court 
evidently  leaned  to  this  opinion,  and  deprecated  the  use  of  terms  indicating 
degrees  of  negligence.  But  elsewhere  it  is  settled  that  such  a  contract  does  not 
relieve  the  company  from  the  consequences  of  the  gross  negligence  of  its  ser- 
vants.'' 

But  if  a  passenger  is  guilty  of  fraud  in  using  a  free  pass  issued  to  a  different 
person,  which  is  not  transferable,  pretending  that  he  is  the  person  to  whom  it 
was  issued,  the  company  will  be  liable  only  for  gross  negligence  which  would 
amount  to  wilful  injury.^  When  a  person  has  accepted  a  free  pass  which  guar- 
antees the  usual  exemption  to  the  carrier  from  the  consequences  of  negligence, 
the  carrier  will  be  so  protected  although  the  accident  occurs  before  the  journey 
has  commenced,  while  the  holder  of  the  pass  is  on  the  premises  with  a  view  to 
taking  his  departure,'  or  is  injured  after  leaving  the  train,  in  the  course  of  his 
departure  from  the  defendant's  premises.^ 

1  Perkins  v.  New  York  etc.  R.  Co.,  24  N.  Y.  ministrator,  23  Pa.  St.  526;  Illinois  etc.  R. 

196.  Co.  V.  Read,  37  111.  484;  Indiana  etc.  R.  Co.  v. 

=  25  N.  Y.  442;  s.  c.  29  Barb.  602.    See  also  Mundy,  21    Ind.  43;    Toledo  etc.   R.  Co.  v. 

Wells  V.  New  York  etc.  R.  Co.,  24  N.  Y'.  181;  Beggs,  85  111.  80. 

Perkins  v.  New  York  etc.  R.  Co.,  24  N.  Y'.  196,  «  Toledo  etc.  R.  Co.  v.  Beggs,  supra. 

205.     Contra,  Boswell  v.  Hudson  etc.  R.  Co.,  "  Poucher  v.  New  York  etc.  R.  Co.,  49  N. 

5  Bosw.  699.  Y.  263.    But  see  Stiuson  v.  New  York  etc.  R. 

3  McCawley  v.  Furness  R.  Co.,  and  Gallin  Co.,  32  N.  Y.  333. 

V.  London  etc.  R.  Co.,  supra.  8  Gallin  v.  London  etc.  R.  Co.,  L.  R.  10  Q. 

*  34  N.  J.  L.  513,  517.  B.  212 ;  s.  c.  44  L.  J.  (Q.  B.)  89 ;  23  Week.  Rep. 

6  Arnold  v.  Illinois  etc.  R.  Co.,  83  HI.  273;  308;  32  L.  T.  (N.  8.)  550;  2  Cent.  L,  J.  217. 
Pennsylvania  R.    Co.   v.  McCloskey's   Ad- 


CHAPTEE    XII. 

USE  OF  ANOTHER'S  MEANS  OF  TRANSPORTATION  —  LIA- 
BILITY OF  CARRIER  TO  PASSENGER  FOR  CONSEQUEN- 
TIAL  INJURIES. 


Leadlng  Cases:  1.  Great  Western  Boihoay  Company  v.  Blake.  —  Liability  of 
railway  company  in  using  another's  track. 
2.  McElroy  v.  Nashua  and  Loioell  Bailroad  Corporatioyi. — 
Liability  of  railway  company  for  injury  to  their  passen- 
gers through  negligence  of  another  company  using  their 
track. 

Notes:     §1.  General  statement  of  liability. 

2.  Carrier  chargealjle  with  the  negligence  of  the  company 

whose  line  is  used. 

3.  Carrier  usiug  the  line  of  another  company  under  statutory 

authority. 

4.  Parties  to  action  —  Bespondeat  superior. 


1.  liability  of  railway  carrier  in  using  another's  track, 
Great  Western  Railway  Company  v.  Blake.* 

English  Court  of  Exchequer  Chamber,  186 2.  f 

1.  The  Principle  of  this  Liability  stated.  —  Railway  companies  are  bound  to  use  due  and 

reasonable  care  to  keep  the  line  over  which  they  contract  to  carry  passengers  in  sale 
condition.  This  obligation  attaches  where  they  convey  their  passengers  over  the  line 
of  another  company.  The  latter  is  regarded  as  the  agent  of  the  contracting  carrier  for 
this  purpose. 

2.  Case  in  Judgment.  —  The  plaintiff  purchased  a  ticket  of  the  defendants,  paying  his 

fare  to  a  station  beyond  the  defendants'  line,  and  upon  a  connecting  line.  By  arrange- 
ment between  the  two  companies,  the  defendants  were  permitted  to  use  the  line  of  the 
other  company  for  the  transportation  of  their  carriages,  and  the  fares  were  apportioned 
between  them.  The  i)laintiff  continued  in  the  same  carriage  throughout  the  entire 
journey,  and  after  the  train  had  passed  upon  the  line  of  the  other  company,  it  came 
into  collision  with  a  locomotive  left  on  that  line  by  the  servants  thereof,  injuring  the 
plaintiff.  There  was  no  negligence  on  the  part  of  the  driver  of  the  defendants'  train. 
The  defendants  were  hold  responsible  for  this  injury,  under  their  implied  contract  to 
maintain  the  line  over  which  the  plaintiff  must  travel  in  their  carriages,  in  a  condition 
fit  for  traffic. 

■►  Reported,  7  Hurl.  &  N.  987. 

t  This  case  was  heard  before  Cockburn,  0.  J.,  Wightman,  Crompton,  Keating,  Byles,  and 
Mellor,  JJ. 

(403) 


404:  USE    OF    ANOTHER    CARRIER'S    ROAD. 

Great  Western  Railway  Company  v.  Blake. 

Error  on  a  bill  of  exceptions.  The  declaration  stated  that  the 
plaintiff,  at  the  i*eqiiest  of  the  defendants,  became  and  was  a  passenger 
in  a  carriage,  being  one  of  a  train  of  railway  carriages,  to  be  by  the 
defendants  safely  and  securely  carried  and  conve3'ed  on  certain  rail- 
way's, on  a  journey  from  one  place  to  another  distant  place,  —  to  wit, 
from  London  to  Milford, — for  hire  and  reward  to  the  defendants  in 
that  behalf.  Yet  the  plaintiff  saith,  that,  by  and  through  the  negligence, 
carelessness,  default,  and  improper  conduct  of  the  defendants,  the  car- 
riage in  which  the  plaintiff  was  carried  and  conve^-ed  during  the  said 
journey,  whilst  the  plaintiff  was  such  passenger  as  aforesaid,  was  sud- 
denly checked  by,  and  received  a  sudden  and  violent  concussion  from, 
the  train  of  carriages,  of  wliich  the  said  carriage  formed  one,  coming 
into  contact  and  colUsion  with,  and  running  and  striking  with  great 
force  and  violence  against  and  upon,  a  locomotive-engine ;  and  thereby 
the  plaintiff  was  greatly  and  permanently  injured  in  his  body,  etc. 

Pleas :  First,  not  guilty ;  secondly,  that  the  plaintiff  did  not  become, 
nor  was  he,  a  passenger  to  be  by  the  defendants  safel}^  or  securely  car- 
ried or  conve3'ed  on  the  said  journey  in  the  declaration  mentioned,  as 
alleged.     Issues  thereon. 

The  cause  was  tried  before  Martin,  B.,  at  the  London  Sittings  after 
Trinity  Term,  1860,  when  the  following  facts  appeared :  The  defend- 
ants were  common  carriers  of  passengers  for  hire,  and  have  a  station  at 
Paddington,  in  London,  and  contract  with  passengers  by  one  contract, 
and  for  one  entire  fare,  to  carry  and  convey  them  from  Paddington  to 
Milford  in  Pembrokeshire.  On  the  evening  of  the  30th  of  December, 
1859,  the  plaintiff  purchased  the  usual  ticket  from  the  defendants  and 
paid  his  fare,  and  became  a  passenger  to  be  conveyed  by  the  defend- 
ants from  Paddington  to  Milford  by  the  mail-train.  The  contract 
l)etween  the  plaintiff  and  defendants  was  the  ordinary'  one  which  the 
law  implied.  The  line  of  railway  belonging  to  the  defendants  termi- 
nates at  Grange  Court,  a  short  distance  beyond  Gloucester,  and  the 
line  from  thence  to  Milford  belongs  to  the  South  Wales  Railway  Com- 
pany. There  is  an  arrangement  between  the  two  companies,  under 
which  the  lines  are  worked  and  the  fares  paid  by  the  passengers  appor- 
tioned between  them.  The  plaintiff  was  convej-ed,  in  the  same  carriage 
which  he  entered  at  Paddington,  past  Grange  Court  and  onwards  towards 
Milford.  After  the  train  had  passed  on  to  the  South  Wales  line,  it  came 
into  collision  with  a  locomotive  engine  left  on  that  line  by  the  servants 
of  the  South  Wales  Railway  Compan}-,  and  the  plaintiff  was  seriously 
injured  by  the  concussion.  There  was  no  negligence  on  the  part  of 
the  driver  of  the  train. 


INJURIES    TO    PASSENGERS.  405 

English  Court  of  Exchequer  Chamber. 

The  learned  judge  told  the  jury  that  the  circumstance  that  the  engine 
was  left  upon  the  line  by  the  servants  of  the  South  Wales  Railway  Com- 
pany, and  not  by  the  servants  of  the  defendants,  did  not  relieve  the 
defendants  from  their  legal  liability,  but  that  they  were  by  law  respon- 
sible for  such  negligent  and  improper  act;  whereupon  the  jury  found  a 
verdict  for  the  plaintiff. 

The  defendants'  counsel  having  tendered  a  bill  of  exception  to  the 
above  ruling,  and  proceedings  in  error  having  been  taken  thereon,  the 
case  was  now  argued  by  — 

Bovill  (with  whom  was  Digby),  for  the  plaintiffs  in  error  (the  defend- 
ants below). —  The  injury  was  caused  by  the  negligence  of  the  South 
Wales  Railway  Company,  not  of  the  Great  Western  Railway  Company. 
[CocKBURN,  C.  J.  — The  contract  was  with  the  Great  Western  Railway 
Company  to  carry  the  whole  distance  from  Paddington  to  Milford. 
Formerly,  if  a  person  booked  a  place  in  a  stage-coach  for  a  particular 
distance,  though  the  coach  proprietor  made  a  subcontract  with  another 
person  to  horse  the  coach  for  some  part  of  the  way,  he  was  liable  for 
negligence  on  that  part.  So  here  there  is  a  contract  to  carry  the  plain- 
tiff to  a  given  place,  and  a  subcontract  to  carry  on  the  line  of  another 
company.]  The  Great  Western  Railway  Company  merely  run  their 
carriages  over  the  South  Wales  line.  The  servants  on  that  line  are  the 
sei-vants  of  the  South  Wales  Company,  over  whom  the  Great  Western 
Railway  Company  have  no  control.  [Cockbdrn,  C.  J.  — It  was  part  of 
their  contract  that  they  would  take  reasonable  care  to  keep  the  railway 
in  a  secure  state  throughout  the  whole  distance,  and  they  have  failed  to 
discharge  that  duty.  It  is  now  settled  that  where  a  person  sends  goods 
by  a  railway  company  who  use  for  a  portion  of  the  distance  the  line  of 
another  company,  if  the  goods  are  lost,  the  remedy  is  against  the  com- 
pany with  whom  the  contract  was  made.]  There  is  no  undertaking  by 
the  Great  Western  Railway  Company  that  the  line  of  railway  they  use 
shall  be  in  a  safe  condition.  In  the  case  of  goods,  the  liability  depends 
upon  whether  the  company  are  common  carriers  throughout  the  whole 
distance ;  and  if  so,  they  are  insurers,  except  as  to  the  act  of  God  and 
the  queen's  enemies.  The  8  and  9  Vict.,  c.  20,  §  87,  enables  one  com- 
pany to  contract  with  another  for  passing  over  their  railway ;  and  by 
the  eighty-ninth  section,  the  company  is  not  to  be  liable  to  a  greater 
extent  than  common  carriers.  Coach  proprietors  are  not  liable  for 
injury  arising  from  accident,  where  there  is  no  negligence  in  the 
driver.  1     An  undertaking  "safely  and  securely  "  to  carry,  only  creates 

1  Aston  V.  Heaven,  2  Esp.  533;  Crofts  v.  Waterhouse,  3  Ring.  319. 


40fi  USE    OF    ANOTHER    CARRIER'S    ROAD. 

Great  Western  Railway  Company  v.  Blake. 

a  duty  to  use  an  ordinary  degree  of  care.^  The  plaintiff  below  must 
establish  that  the  arrangement  under  which  the  Great  Western  Railwa}^ 
Company  used  the  line  of  the  South  Wales  Company  made  the  servants 
of  the  latter,  who  caused  the  injury,  the  servants  of  the  former.  But 
the  mere  bargain  did  not  transfer  the  liability  for  negligence  from  one 
compan}'  to  the  other.  [Cockburn,  C.  J.  —  What  is  there,  in  a  contract 
by  a  passenger  with  a  railway  company,  to  make  their  liability  less  over 
one  portion  of  the  line  over  which  they  carry  than  another?]  The 
Great  Western  Railway  Company  have  merely  permission  to  use  the 
line  of  the  South  Wales  Railway,  and  by  giving  tickets  to  passengers  to 
travel  over  that  line,  they  undertake  that  they  will  use  ordinary  care, 
not  that  they  will  be  responsible  for  the  acts  of  servants  over  whom  they 
have  no  control.  [Ckompton,  J. — Their  contract  is,  "I  will  carry 
you  by  myself  and  my  subcontractor."]  He  also  referred  to  Latch  v. 
Runiner  Raihvay  Company.- 

Parry,  Serjt.  (with  whom  was  Archibald),  appeared  for  the  defend- 
ant in  error  (the  plaintiff  below),  but  was  not  called  upon  to  argue. 

Cockburn,  C.  J.  —  I  am  of  opinion  that  the  direction  of  the  learned 
judge  was  right,  and  that  the  judgment  of  the  court  below  ought  to  be 
affirmed.  It  has  been  settled  that  where  a  railway  company  enters  into 
a  contract  for  the  conveyance  of  goods  to  a  distance  extending  not 
merely  over  their  own  line,  but  over  the  whole  or  some  portion  of  any 
other  line  of  railway  with  which  it  is  connected,  the  company  so  con- 
tracting is  liable  not  only  for  the  loss  of  the  goods  upon  their  own  line, 
but  also  in  respect  of  the  loss  of  goods  upon  the  line  not  their  own. 
I  think  that  position  obtains  in  the  case  of  passengers.  If  a  railway 
compan}''  chooses  to  contract  to  carry  passengers  not  only  over  their 
own  line,  but  also  over  the  line  of  another  company,  either  in  whole  or 
in  part,  the  company  so  contracting  incurs  all  the  liability  which  would 
attach  to  them  if  they  had  contracted  solely  to  carry  over  their  own 
line.  Here  there  was  a  contract  between  the  Great  Western  Railway 
Company  and  the  South  Wales  Railway  Company,  by  which  the  former 
are  enabled  to  carry  passengers  not  only  over  their  own  line,  but  also 
over  the  South  Wales  line.  Under  these  circumstances,  the  Great  West- 
ern Railway  Company  became  responsible  for  the  safety  of  every  pas- 
senger throughout  the  distance  for  which  they  gave  him  a  ticket,  just  as 
if  they  had  conveyed  him  on  their  own  line. 

This  brings  us  to  the  simple  question  how  far  the  company  are  bound 

1  Ross  V.  Hill,  2  C.  B.  877.  »  27  L.  J.  (Exch.)  165. 


INJURIES    TO    PASSENGERS.  407 


English  Court  of  Exchequer  Chamber. 


to  use  reasonable  care  for  the  safety  of  passengers,  as  well  on  their  own 
line  as  on  the  passage  over  another  line.  Looking  at  the  construction 
of  railways,  and  the  powers  which  railway  companies  enjoy,  there  is 
no  doubt  it  is  part  of  the  contract  that  they  shall  use  reasonable  care  to 
maintain  their  railway  in  proper  condition  for  the  conveyance  of  pas- 
sengers. This  is  not  like  the  case  of  a  stage-coach  proprietor,  because 
the  road  is  not  in  his  hands,  and  he  has  no  means  of  securing  its  proper 
condition.  When  the  contract  is  entered  into,  the  road  would  be  in  a 
certain  condition,  without  any  thing  being  required  to  be  done  on  the 
part  of  the  coach  proprietor  to  keep  it  in  a  safe  condition.  Railway 
companies  ought  at  least  to  use  due  and  reasonable  care  to  keep  the 
line  over  which  they  contract  to  carry  passengers  in  a  safe  condition. 
There  is  no  doubt  that  is  the  obligation  which  attaches  to  a  railway 
company  who  undertake  to  convey  passengers  through  the  whole  dis- 
tance on  their  line  ;  and  if  by  arrangement  with  another  company  they 
convey  passengers  over  the  whole  or  part  of  another  line,  the  same  obli- 
gation attaches,  and  they  make  the  other  company  their  agent,  and  on 
their  part  they  undertake  that  the  other  company  shall  keep  their  line 
in  a  proper  condition. 

It  is  unnecessary  to  say  whether  the  plaintiff  below  would  have  had 
a  right  of  action  against  the  South  Wales  Railway  Company ;  at  all 
events,  he  has  against  the  Great  Western  Railwaj^  Company.  It  would 
be  inconsistent  with  public  convenience  and  safety  to  put  any  other 
construction  on  such  a  contract  than  that  the  Great  Western  Railway 
Company  should  be  primarily  liable  to  the  plaintiff  below,  and  should 
take  their  remedy  against  the  South  Wales  Compan}',  whose  servants, 
by  their  negligence,  have  caused  the  accident ;  whilst  to  hold  that  the 
Great  Western  Railway  Company  is  liable,  is  not  only  consistent  with 
public  convenience,  but  also  the  true  construction  of  the  contract. 

WiGHTMAN,  J.  —  I  concur  in  the  opinion,  though  not  without  some 
hesitation. 

Cromptox,  J.  —  I  am  of  the  same  opinion.  When  the  Great  Western 
Railway  Company  gave  a  ticket  to  the  plaintiff  to  travel  from  Padding- 
ton  to  Milford,  they  took  upon  themselves  all  the  responsibilities  by 
which  a  railway  company  is  bound  with  reference  to  the  carriage  of 
passengers  the  whole  distance.  I  say  the  carriage  of  passengers, 
because  Mr.  Bovill  has  distinguished  between  passengers  and  goods  as 
regards  the  extent  of  liability.  When  railways  were  first  established, 
some  companies  would  only  undertake  to  convey  passengers  part  of  the 
way  on  a  long  journey  on  their  own  line ;  others  conveyed  passengers 


408  USE    OF    ANOTHER    CARRIER'S    ROAD. 

Great  Western  Railway  Company  v.  Blake. 

beyond  their  own  lines,  but  refused  to  be  responsible  for  what  might 
occur  on  a  line  not  their  own  ;  others  made  an  arrangement  with  other 
companies  by  which,  for  one  fare  for  the  whole  distance,  they  under- 
took to  conve}'  passengers  to  particular  places  on  the  line  of  another 
company.  Here,  the  Great  Western  Railway  Company  having  made 
arrangements  with  the  South  Wales  Railway  Company  for  the  eai'riage 
of  passengers  to  Milford,  and  for  dividing  the  fares  between  them,  one 
of  the  responsibilities  which  they  took  upon  themselves  was  that  the 
line  should  be  safe  and  secure  the  whole  distance.  Whether,  under 
these  circumstances,  a  passenger  would  have  a  remedy  against  the  South 
Wales  Railway'  Company  may  be  doubtful,  because  there  is  no  privity 
between  them  ;  but  the  Great  Western  Railway  Company  has  a  remedy 
against  the  South  Wales  Railway  Company. 

Btles,  J.  — I  am  of  the  same  opinion.  The  express  finding  that  by 
arrangement  between  the  two  companies  the  fares  are  apportioned 
between  them,  involves  this  proposition:  that  when  the  Great  Western 
train  comes  upon  the  South  Wales  line,  as  the  profits  are  divided 
between  the  Great  Western  and  South  Wales  companies,  for  the  purpose 
of  this  action  the  South  Wales  line  became  the  Great  Western  line, 
and  the  Great  Western  Company  were  bound  to  take  due  care  with 
respect  to  the  machinery, — that  is,  the  engines,  carriages,  and  line.  It 
is  sufficient  to  rest  there ;  but,  if  necessary,  I  should  go  further,  and 
SH}^  that,  without  the  arrangement  as  to  profits,  the  Great  Western  Com- 
pany, by  their  contract  with  the  plaintiff  below,  were  as  much  bound  to 
take  care  of  the  machinery  as  if  the  whole  line  was  their  own.  Possibly 
the  South  Wales  Railway  Company  might  have  been  liable  to  the  plain- 
tiff below ;  yet  here  is  a  contract  from  which  results  a  duty  on  the  part 
of  the  Great  Western  Railway  Company  to  take  due  care  that  the 
machinery  from  Paddington  to  Milford  is  safe  and  secure. 

Keating,  J,  —  I  concur  in  opinion  that  the  ruling  of  the  learned 
judge  was  correct. 

Mellor,  J.  —  I  am  of  the  same  opinion.  The  effect  of  the  arrange- 
ment between  the  two  companies  was  to  make  the  line  of  the  Great 
Western  Company  one  line  from  Paddington  to  Milford.  I  do  not  say 
how  it  would  be  if  the  Great  Western  Company  had  run  over  the  line 
of  the  South  Wales  Company  on  payment  of  tolls.  I  do  not  dissent 
from  what  my  brother  Byles  has  said  on  that  point ;  but  I  express  no 
opinion  upon  it,  as  it  is  not  necessary  for  the  decision  of  this  case. 

Judgment  affirmed. 


INJUKIES    TO    PASSENGERS. 


409 


Supreme  Judicial  Court  of  Massachusetts 


2,  LIABILITY  OF  RAILWAY  COMPANY  FOR  INJURY  TO  THEIR  PAS- 
SENGERS THROUGH  NEGLIGENCE  OF  ANOTHER  COMPANY  USING 
THEIR  TRACK. 

McElroy  V.  Nashua  and  Lowell  Eailroad  Corporation.* 
Supreme  Judicial  Court  of  Massachusetts^  1849. 


Hon.  Lemuel  Shaw,  Chief  Justice 
"     Samuel  S.  Wilde, 
*'     Charles  A.  Dewey, 
"     Theron  Metcalf, 
*'     Richard  Fletcher, 


Judges, 


1.  General  Principle.  —  The  proprietors  of  a  railroad,  as  passenger-carriers,  are  bound  to 
the  most  exact  care  and  diligence,  not  only  in  the  management  of  their  trains  and  cars, 
hut  also  in  the  structure  and  care  of  their  track  and  in  all  the  subsidiary  arrangements 
necessary  to  the  safety  of  passengers. 

3.  Illustration.  —  A  railroad  company  are  responsible  for  an  injury  sustained  by  a  passen- 
ger in  their  cars  in  consequence  of  the  careless  management  of  a  switch  by  which 
another  railroad  connects  with  and  enters  upon  their  road,  although  the  switch  is  pro- 
vided by  the  proprietors  of  the  other  road,  and  attended  by  one  of  their  servants  at 
their  expense. 

This  was  an  action  on  the  case  to  recover  damages  of  the  defendants 
for  an  injury  alleged  to  have  been  sustained  by  the  female  plaintiff 
while  riding  as  a  passenger  in  the  defendants'  cars  from  Lowell  to 
Nashua.  The  case  was  submitted  to  the  court  upon  an  agreed  state- 
ment of  facts. 

The  defendants  are  common  carriers,  carrying  passengers  for  hire 
between  the  above-mentioned  places,  and  the  female  plaintiff  had  taken 
her  passage  and  paid  the  fare  from  Lowell  to  Nashua  in  the  evening 
train  of  the  defendants. 

By  the  thirteenth  section  of  the  act  of  incorporation  granted  to  the  de- 
fendants by  the  Legislature  of  New  Hampshire,  power  was  reserved  to 
authorize  any  other  railroad  corporation  to  connect  with,  enter  upon,  and 
use  the  Nashua  and  Lowell  Railroad  at  a  point  where  the  Concord  Rail- 
road was  afterwards  made  to  enter  upon  the  same,  and  at  the  point  where 
the  alleged  injury  was  incurred.  After  the  incorporation  of  the  defend- 
ants, the  Legislature  of  New  Hampshire  also  incorporated  the  Concord 
Railroad  Corporation,  and  granted  them  the  right  to  connect  with  and 
enter  upon  and  use  the  Nashua  and  Lowell  Railroad  at  the  point  where 
they  did  enter  the  same,  and  where  the  accident  happened. 

*  Reported,  4  Cush.  400. 


410  USE    OF    ANOTHER    CARRIER'S    ROAD. 

McElroy  v.  Nashua  and  Lowell  Railroad  Corporation. 

The  Concord  Railroad  Corporation,  in  accordance  with  the  powers 
thus  granted,  made  a  switch  and  connecting-track  in  the  defendants' 
road,  so  as  to  pass  to  and  from  the  same,  and  entered  thereon  and 
placed  a  switchman  there,  to  let  the  Concord  cars  pass  on  and  off  the 
road.  This  switchman,  at  the  time  of  the  accident  and  ever  before, 
was  the  servant  of  the  Concord  Railroad  Corporation,  and  was  in  nowise 
the  servant  of  the  defendants,  or  in  any  manner  under  their  authority 
or  control.  By  an  arrangement  between  the  two  corporations,  the 
defendants  hauled  the  cars  of  the  Concord  Railroad  Corporation  over 
their  road  to  Lowell,  after  they  had  entered  thereon,  and  also  hauled 
them  back  from  Lowell  to  a  point  about  a  fourth  of  a  mile  below  the 
junction  of  the  Concord  Railroad,  and  there  detached  them  and  went 
on  over  the  switcli  to  the  end  of  the  road,  leaving  the  Concord  train  to 
follow  by  force  of  the  momentum  previously  given  to  them,  but  at  so 
slow  a  speed  as  to  arrive  at  the  switch  after  the  defendants'  train  had 
passed,  and  then  to  be  switched  off  by  the  switchman  upon  the  Con- 
cord Railroad. 

On  the  evening  in  question,  the  Concord  train  was  detached  as  usual, 
and  the  defendants'  cars,  in  the  rear  of  one  of  which  the  female 
plaintiff  was,  passed  on,  and  the  engine,  tender,  and  forward  car 
passed  over  the  switch  in  safety ;  but  by  the  carelessness  of  the  switch- 
man, the  switch  became  changed,  so  that  the  defendants'  baggage-car 
and  the  passenger-car  above  mentioned  were  turned  off  upon  the  Con- 
cord Railroad  and  bi'oken  from  the  forward  cars,  and  therebj^  and 
thereon  the  injury  was  occasioned  for  which. this  action  was  brought. 

The  defendants  were  incorporated  by  the  Legislature  of  New  Hamp- 
shire to  build  that  part  of  their  road  which  lies  in  that  State,  and  by 
the  Legislature  of  this  Commonwealth  to  build  that  portion  of  their  road 
which  is  in  this  State ;  and  the  two  corporations  were  afterwards  united 
by  acts  of  the  Legislatures  of  this  Commonwealth  and  New  Hampshire. 
The  point  where  the  accident  happened  is  in  New  Hampshire. 

The  question  of  damages  only  was  submitted  to  the  jury,  and  a 
verdict  was  taken  by  consent  for  the  plaintiff,  upon  the  facts  as  above 
stated,  subject  to  the  opinion  of  the  whole  court. 

J.  G.  Abbott,  for  the  plaintiffs,  cited  Ingalls  v.  Bills,^  Story  on  Bail- 
ments,^  Angell  on  Carriers,^  Stokes  v.  Saltonstall,'^  Bostwick  v.  Cham- 
pion,^ Cole  V.  Goodwin,^  and  Waland  v.  ElkinsJ 

1  9  Mete.  1 ;  8.  c.  ante,  p.  112.  »  11  Wend.  571. 

s  §§  601,  602.  3  §§  536-.538.  •  19  Wend.  251. 

«  13  Pet.  181;  8.  c.  ante,  p.  183.  '  1  Stark.  272. 


INJURIES    TO   PASSENGERS.  411 

Supreme  Judicial  Court  of  Massachusetts. 

T.  Wentioorth,  for  the  defendants,  cited  Avgell  on  Carriers,^  Story 
on  Bailments,^  Bennett  v.  Button,^  Hawkins  v.  Hoffman,'^  Boyce  v. 
Anderson,^  and  McKinney  v.  Neil.^ 

Shaw,  C.  J.  —  The  court  are  of  opinion,  upon  the  facts  agreed,  that 
the  defendants  are  liable  to  the  plaintiffs  for  the  damage  sustained  by 
the  wife  whilst  travelling  in  their  cars.  As  passenger-carriers,  the 
defendants  were  bound  to  the  most  exact  care  and  diligence,  not  only 
in  the  management  of  the  trains  and  cars,  but  also  in  the  structure  and 
care  of  the  track,  and  in  all  the  subsidiary  arrangements  necessary  to 
the  safety  of  passengers.  The  wife  having  contracted  with  the  defend- 
ants and  paid  fare  to  them,  the  plaintiffs  had  a  right  to  look  to  them, 
in  the  first  instance,  for  the  use  of  all  necessar}-  care  and  skill.  The 
switch  in  question,  in  the  careless  or  negligent  management  of  which 
the  damage  occurred,  was  a  part  of  the  defendants'  road,  over  which 
they  must  necessarily  carry  all  their  passengers ;  and  although  provided 
for  and  attended  by  a  servant  of  the  Concord  Railroad  Corporation, 
and  at  their  expense,  yet  it  was  still  a  part  of  the  Nashua  and  Lowell 
Railroad,  and  it  was  within  the  scope  of  their  duty  to  see  that  the  switch 
was  rightly  constructed,  attended,  and  managed,  before  they  were  justi- 
fied in  carr^'ing  passengers  over  it.  Had  the  action  been,  in  form,  on 
the  implied  contract  of  the  defendants,  in  undertaking  to  carry  a  pas- 
senger, to  have  a  safe  road  and  apply  and  use  all  necessary  care  and 
skill,  the  liabilit}'  of  the  defendants  might  have  been  more  clear  and 
manifest ;  but  the  duty  is  the  same,  and  in  most  cases  of  this  kind  of 
carelessness,  negligence,  or  want  of  due  skill,  in  the  performance  of 
dutj'  undertaken  to  be  done  for  hire  and  reward,  it  is  at  the  election 
of  the  plaintiff  to  declare  in  assumpsit  and  rely  on  the  promise,  or  to 
declare  in  tort  and  rest  on  the  breach  of  dut}'.  Whether  the  plaintiffs 
might  have  maintained  an  action  on  the  case  against  the  Concord  Rail- 
road Corporation  for  the  negligence  of  their  servant,  or  whether  the 
defendants  may  have  a  remedy  over  against  the  Concord  Railroad 
Corporation,  by  the  terms  of  the  statute  under  which  the  latter  were 
allowed  to  come  on  to  the  defendants'  road,  or  by  the  terms  of  their 
contract,  we  give  no  opinion.''' 

Judgment  on  the  verdict  for  the  plaintiffs. 

»  §§  521,  523.  8  5§  590,  602.  »  2  Pet.  150. 

«  10  N.  H.  481;  s.  c.  ante,  p.  2.  •  1  McLean,  540. 

*  6  Hill,  586.  »  Waland  v.  Elkins,  1  Stark.  273. 


412  USE    OF    ANOTHER    CARRIER'S    ROAD. 


General  Statement  of  Liability. 


NOTES. 

§  1.  General  Statement  of  Liability.  —  To  facilitate  transportation,  it  fre- 
quently becomes  necessary  for  carriers  by  railway  to  run  their  trains  over  each 
other's  roads.  This  is  effected  in  various  ways:  The  carrier  having  reached  the 
terminus  of  its  route,  may  proceed  over  some  connecting  line,  retaining  full  con- 
trol of  its  train,  paying  a  toll,  or  something  equivalent,  to  the  owners  of  the 
other  road ;  or  it  may  become  necessary  for  the  first  carrier  to  wholly  or  par- 
tially abandon  the  control  of  its  train  to  the  servants  of  the  other  company. 
Injuries  to  passengers  under  such  circumstances  have  raised  nice  questions  as 
to  whom  the  passenger  might  look  for  compensation  in  damages.  It  sometimes 
happens,  as  in  McElroy  v.  Nashua,  etc.  Bailroad  Company,^  that  the  injury  is 
hardly  traceable  to  any  fault  on  the  part  of  the  carrier  of  the  passenger,  and 
sometimes  not  at  all ;  however,  a  simple  and  severe  rule  has  been  quite  generally 
adopted  in  such  cases :  viz.,  to  hold  the  carrier  who  first  received  the  passenger, 
and  with  whom  the  contract  of  transportation  was  made,  to  the  same  degree 
of  liability  as  if  this  company  owned  and  controlled  the  entire  length  of  line 
traversed,  the  reason  being  that  the  carrier  having  contracted  to  furnish  his 
passengers  with  a  safe,  expeditious,  and  comfortable  passage,  is  presumed  to  have 
the  means  of  so  doing,  or  at  least  is  bound  to  do  it.^ 

§  2.  Carrier  chargeable  wltti  the  Negligence  of  the  Company  whose  Line 
is  used.  —  The  cases  of  Birkett  v.  Whitehaven  Junction  Railway  Company  ^  and 
L-h'eat  Western  Railway  Company  v.  Blake  *  are  most  frequently  cited  in  this  con- 
nection. In  the  first  of  these  cases,  the  plaintiff's  intestate  bought  a  ticket  of 
the  defendant  company.  To  reach  his  destination  it  was  necessary  for  the  train 
of  this  company  to  pass  over  the  line  of  another  company.  This  last  company 
had  constructed  a  self-acting  switch  upon  its  line,  for  the  exclusive  use  of  the 
defendant  company  for  this  purpose.  The  switch  was  about  four  yards  from  a 
gate  on  the  line  of  the  defendant  company.  The  gate-keeper,  a  servant  of  the 
defendant,  was  in  the  habit  of  looking  over  the  gate  to  see  that  the  switch  was 
in  proper  order.  The  train  of  the  defendant  company  upon  which  the  plaintiff's 
intestate  was  riding  ran  slowly  over  this  switch,  but  the  points  Ijeing  turned  the 
wrong  way,  it  collided  with  some  coal-trucks,  whereby  this  passenger  w^as  killed. 
There  was  evidence  that  such  switches  as  this  were  liable  to  get  out  of  order, 
and  the  Court  of  Exchequer  Chamber  held  that  it  was  properly  left  to  the  jury 
to  say  whether  the  defendant  was  not  negligent  in  not  having  this  switch  more 
properly  guarded.  No  opinion  w^as  given  on  the  general  question  as  to  whether 
a  railway  company  undertakes  for  the  safety  of  other  lines  over  which  its  trains 
travel 

1  Ante,Tp.  409.  Murch  «.  Concord  R.  Co.,  29  N.  H.  9;  Sey 

2  Birkett  v.  Whitehaven  Junction  R.  Co.,  mour  v.  Chicago  etc.  R.  Co.,  3  Biss.  43 
4  Hurl.  &  N.  730;  Great  Western  R.  Co.  Peters  v.  Rylands,  20  Pa.  St.  497;  s.  c.  1  Phila 
V.  Blake,  ante,  p.  403;  Buxton  v.  North-  264;  McLean  v.  Burbank,  11  Minn.  277 
Eastern  R.  Co.,  L.  R.  3  Q.  B.549;  Thomas  v.  Champion  v.  Bostwick,  11  Wend.  571,  5S1 
Rhymney  R.  Co.,  L.  R.  5  Q.  B.  22U;  s.  c.  s.  c.  IS  Wend.  175,  181.  Contra,  Sprague  v 
(affirmed  in  Exchequer  Chamber)  L.  R.  6  Q.  Smith,  29  Vt.  421.  3  4  Hurl.  &  N.  730. 

B.  266;  John  v.  Bacon,  L.  R.  5   C.  P.  437;  <  7  Hurl.  &  N.  9S7,  a7iie,  p.  403. 


INJURIES    TO    PASSENGERS.  413 


Negligence  of  the  Company  whose  Line  is  used. 

In  the  other  case,i  the  govei-ning  principle  of  these  cases  is  clearly  indicated 
by  CocKBURN,  C.  J.,  as  follows :  "  Railway  companies  ought  at  least  to  use  due 
and  reasonable  care  to  keep  the  line  over  which  they  contract  to  carry  passengers 
in  a  safe  condition.  There  is  no  doubt  that  is  the  obligation  which  attaches  to  a 
railway  company  who  undertake  to  convey  passengers  through  the  whole  distance 
on  their  line ;  and  if,  by  arrangement  with  another  company,  they  convey  pas- 
sengers over  the  whole  or  part  of  another  line,  the  same  obligation  attaches,  and 
they  make  the  other  company  their  agent,  and  on  their  part  they  undertake  that 
the  other  company  shall  keep  their  line  in  proper  condition."  ^ 

Subsequently,  in  the  Court  of  Queen's  Bench,^  upon  the  authority  of  this 
case,  it  was  held  that  a  railway  company  were  responsible  in  damages  for  an 
injury  to  a  passenger  on  their  train  while  it  was  running  over  the  line  of  another 
company,  the  train  being  thrown  from  the  track  by  striking  a  bullock  which  had 
strayed  upon  it  by  breaking  through  a  defective  fence.  Lush,  J.,  stated  that 
even  in  the  absence  of  the  foregoing  authority  he  should  nevertheless  hold  that 
"a  company  undertaking  to  carry  passengers  over  another  line  is  answerable  for 
negligence  happening  on  it  just  as  much  as  if  it  happened  on  their  own  line."  * 

The  current  of  authority  in  this  country  is  much  the  same  as  that  of  the  fore- 
going decisions.  Thus,  it  is  said :  "By  using  the  railroad  of  another  corporation 
us  a  part  of  their  track,  whether  by  couti-act  or  mere  permission,  they  would 
ordinarily,  for  many  purposes,  ma';e  it  their  own,  and  would  assume  towards 
those  whom  they  had  agreed  to  receive  as  passengers  all  the  duties  resulting 
from  that  relation  as  to  the  road ;  and  if  accident  resulted  to  such  passengers 
from  any  failure  of  duty  of  the  owners  of  the  road,  for  which  they  would  be 
i-esponsible  if  the  road  was  their  own,  their  remedy  over  would  be  against  the 
owners."^ 

In  a  case  before  Mr.  Justice  Davis,  of  the  United  States  Supreme  Court, 
sitting  in  the  Circuit  Court,^  where  the  defendant  used  the  station  of  another 
company  by  arrangement  with  them,  and  the  plaintiff,  a  passenger  of  the 
defendant,  slipped  upon  some  pieces  of  ice  scattered  upon  the  platform  of 
the  station,  injuring  herself,  the  jury  were  charged  that  it  was  the  duty  of  the 
defendant  to  see  that  the  platform  used  by  it  was  safe  and  convenient  for  pas- 
sengers to  get  in  and  out  of  the  cars,  regardless  of  any  arrangement  with  the 
company  owning  the  building.'' 

The  owners  of  passenger-cars  run  upon  a  railroad  belonging  to  the  State  are 
liable  for  an  injury  sustained  by  a  passenger  from  the  collision  of  two  of  their 
trains  passing  in  the  same  direction,  though  the  motive  power  of  the  road  was 
furnished  by  the  State  and  was  under  the  control  of  the  State's  agents,  and 
though  the  accident  happened  through  the  negligence  of  the  agents  of  the  State. 
The  carrier  having  contracted  with  the  passenger  under  such  circumstances,  is 
chargeable  accordingly .^ 

1  Great  Western  R.  Co.  v.  Blake,  ante,  ^  Murch  v.  Concord  R.  Co.,  29  N.  H. 
p.  40.5.  9,  35. 

2  7  Hurl.  &  N.  992.  «  Seymour    v.   Chicago    etc.    R.    Co.,    3 

3  Buxton  V.  North-Eastern  R.  Co.,  L.  R.  Biss.  43. 

3  Q.  B.  549.  '  To  the  same  effect  is  John  v.  Bacon,  L. 

<  L.  R.  3  Q.  B.  .W4.    Substantially  is  the  R. .')  C.  V.  4.37. 

language  of  Bylcs,  J.,  in  Great  Western  R.  ^  I'eters  v.  Rylands,  20  Pa.  St.  497;  s.  c.  1 

Ci).  V.  Blake,  7  Hurl.  &  N.  987,  994,  ante,  p.  403.  Phila.  264. 


414  USE    OF   ANOTHER    CARRIER'S    ROAD. 


Notes. 


So,  where  it  became  necessary  for  a  stage-coach  to  cross  a  fei'ry,  and  by  the 
negligence  of  the  proprietoi's  of  the  ferry  the  life  of  a  passenger  on  the  stage- 
coach was  lost,  the  owners  of  the  stage-coach  were  held  responsible  for  this 
mishap,  under  their  contract  with  the  passenger.i 

Contrary  to  the  foregoing  cases  is  a  decision  by  Redfield,  C.  J.,^  and,  we 
believe,  the  only  one  of  its  kind  in  this  country.  The  defendants  were  trustees 
operating  a  railroad  upon  wliich  tlie  plaintiff  was  a  passenger.  These  trustees  had 
an  arrangement  with  another  railroad  company,  upon  which  freight  was  received 
from  the  defendants'  road  and  transported  on  the  cars  of  the  defendants,  a  divi- 
sion of  the  receipts  being  made  between  them.  Upon  the  occasion  of  injury  to 
the  plaintiff,  the  car  in  which  he  was  riding  was  upon  the  track  of  the  other 
company,  waiting  for  another  train  to  pass,  when  a  freight-train  belonging  to 
such  company  was  carelessly  backed  into  the  car  in  which  the  plaintiff  was 
seated,  whereby  he  was  seriously  injured.  The  learned  judge  stated  that  he  did 
not  perceive  how  the  ordinary  rule  of  liability  of  the  carrier  could  apply  to  a 
case  of  this  kind,  because  the  party  doing  the  injury  was  in  no  manner  subject 
to  the  control  of  the  defendants,  saying:  "He  [the  carrier]  cannot  be  regarded 
as  liable,  we  think,  for  all  the  acts  of  all  the  operatives  of  the  companies  over 
whose  roads  he  carries  the  plaintiff,  unless  some  connection  between  the  roads, 
of  a  character  similar  to  that  of  general  partnership  or  the  consolidation  of  their 
interests  in  the  carrying  business,  is  shown,  which  was  not  done  in  the  present 
case." 

This  case  was  decided  m  1857,  since  which  date  there  have  been  many  decisions 
pointedly  in  conflict  with  the  foregoing  remarks.  The  language  of  Cockburn, 
C.  J.,  in  Great  Western  Bailway  Covymmj  v.  Blake  ^  is  especially  noticeable  in 
this  connection.  The  objection  to  this  decision  is  that  it  holds  the  carrier  to  no 
higher  degree  of  liability  for  the  negligence  of  another  carrier  with  whom  it 
has  traffic  arrangements  than  for  that  of  a  stranger.*  It  would  seem  quite 
reasonable  to  say  that  the  defendants  in  this  case  had,  or  ought  to  have  had,  a 
thorough  knowledge  of  the  perils  to  which  their  train  would  be  exposed  iu 
passing  over  the  other  road.  It  is  equally  reasonable  to  say  that  they  contracted 
to  protect  the  plaintiff  from  these  perils  of  which  he  could  have  no  definite 
knowledge;  and  such,  as  we  have  seen,  is  the  result  of  the  authorities.^ 

For  the  same  reason  as  prevailed  in  the  foregoing  cases,  if  a  railroad  company 
permit  another  company  to  run  trains  over  its  track,  and  a  collision  ensues 
between  trains  belonging  to  the  different  companies,  the  passengers  of  the 
former  company  injured,  in  consequence,  will  have  a  right  of  action  against  their 
carrier,  although  the  accident  may  be  wholly  imputable  to  the  fault  of  the 
servants  of  the  latter.  This  is  so  because  it  would  be  unjust  that  the  carrier, 
who  has  been  invested  with  certain  franchises  for  public  purposes,  should  be 

1  McLean  v.  Burbank,  11  Minn.  277.  happened    under   similar  circumstances,  a 

2  Sprague  v.  Smith,  29  Vt.  421.  case  stronger  against  the  plaintitf  than  that 
*  7  Hurl.  &  N.  987,  992,  an<e,  p.  403.  under  discussion,  because  in  the  former 
■*  Latch  V.  Rumner  R.  Co.,  27  L.  J.  (Exch.)  case  the  defendants'  train  ran  over  the  road 

155.  on  which  the  accident  happened,  in  pursu- 

5  See  in  this  connection  especially  Great  ance  of  statutory  authority,  while  the  traffic 

AVestem  R.  Co.  «.  Blake   (ante,  p.  403),  and  arrangements  in  this  case  were  the  result 

Thomas  v.  Bhymney  R.  Co.  (L.  R.  5  Q.  B.  226;  of  private  agreement. 
a.  c.  L.  R.  6  Q.  B.  266) ,  where  the  accident 


INJURIES    TO   PASSENGERS.  415 

Statutory  Authority  to  use  another  Carrier's  Road. 

permitted  to  derive  a  profit  therefrom,  at  an  enhanced  risli  to  his  passengers, 
without  additional  responsibility  tlierefor.  In  a  case  before  Mr.  Justice  Davis, 
on  the  circuit,  he  charged  the  jury  that  if  the  road  on  which  the  accident 
occurred  belonged  to  the  defendant,  and,  by  its  charter,  vpas  under  its  sole  con- 
trol to  carry  passengers  and  property,  and  if  it  allowed  the  trains  of  another 
company  to  run  over  it  under  the  management  of  the  agents  of  such  company, 
it  should  be  done  in  such  a  manner  as  not  to  interfere  with  the  safety  of  the 
passengers  of  the  defendant ;  that  as  to  such  passengers,  the  fault  of  the  other 
company  in  running  their  train  was  the  fault  of  the  defendant. ^  Similarly  it  has 
been  held  that  a  railroad  company  is  liable  to  the  owner  of  stock  killed  by  the 
train  of  another  company  permitted  to  use  its  road.* 

§  3.  Carrier  using  the  Line  of  another  Company  \inder  Statutory  Author- 
ity.—  In  the  cases  we  have  previously  noticed,  the  use  of  the  line  of  one  com- 
pany for  the  accommodation  of  another  company  was  purely  a  matter  of  private 
arrangement.  It  remains  to  be  seen  whether  the  rule  adopted  in  such  cases  Avill 
apply  where  by  statute  one  company  is  vested  with  "running  powers"  over 
the  line  of  another.  This  question  was  raised  for  the  first  time  in  Thomas  v. 
Bhymney  Bailway  Company ^^  There,  the  plaintiff  took  a  ticket  of  the  defendants 
to  be  carried  as  a  passenger  from  A.,  through  B.,  to  C.  At  B.  the  defendants' 
line  joined  the  line  of  another  company,  over  which  the  defendants  had  statutory 
running  powers*  from  B.  to  C.  on  the  payment  of  certain  tolls,  the  whole  of  the 
traffic  arrangements  being  left  by  the  statute  in  the  control  of  the  company  whose 
line  was  thus  traversed.  After  leaving  B.,  the  train  of  the  defendants  in  which 
the  plaintiff  rode  came  into  collision  with  a  train  of  the  other  company,  injur- 
ing the  plaintiff.  The  defendants'  servants  were  not  negligent;  and  the  col- 
lision was  owing  to  the  negligence  of  the  servants  of  the  other  company  in 
sending  on  their  own  train  without  the  proper  tail-light,  and  allowing  the 
defendants'  train  to  proceed  on  the  same  track  too  soon  after  the  other  train, 
without  giving  any  warning  to  the  servants  of  the  defendants  in  charge.  The 
judges  of  the  Court  of  Queen's  Bench,  though  hesitating,  were  of  opinion  that 
the  rule  announced  in  the  previous  cases  ought  to  apply  in  this  case.  Mellor, 
J.,  said:  "  I  confess  my  present  opinion  is  that  the  defendants  ought  not  to  be 
lial)Ie,  and  that  a  railway  company  can  only  be  held  responsible  for  the  negli- 
gence of  those  over  whom  they  have  control."  ^  Lush,  J.,  who  delivered  the 
opinion  of  the  court  in  Buxton  v.  North-Eastern  Bailway  Company,^  stated  that 
the  distinction  between  this  and  the  previous  cases  was  not  present  to  his  mind 
when  he  decided  that  case,  but  he  thought  such  a  case  as  this  might  be  included 
in  the  expressions  used  by  Byles,  J.,  in  Great  Western  Baihoay  Company  v. 
Blake,''  and  his  own  decision  in  Bttxton  v.  North-Eastern  Bailway  Company.^ 
Accordingly,  judgment  was  entered  against  the  defendants. 

This  case  was  appealed  to  the  Court  of  Exchequer  Chamber,'  where  the  deci- 
sion of  the  court  below  was  affirmed.    Kelly,  C.  B.,  who  delivered  the  prin- 

1  Barron  v.  Illinois  etc.  R.  Co.,  1  Biss.  453;  *  L.  R.  5  Q.  B.  228. 
«.  c.  affirmed  in  5  Wall.  90.  •  L.  R.  3  Q.  B.  549. 

2  Toledo  etc.  R.  Co.  v.  Rumbold,  40  lU.  143.  »  7  Hurl.  &  N.  987,  994,  ante,  p.  403. 

3  L.  R.  5  Q.  B.  226.  8  Supra. 

<  20  &  21  Vict.,  c.  140.  »  L.  R.  6  Q.  B.  266. 


416  USE    OF    ANOTHER    CARRIER'.S    ROAD. 


Notes. 


cipal  opinion,  said:  "I  feel  bound  to  add  for  myself,  and  on  behalf  of  several 
of  the  judges  who  have  taken  part  iu  the  hearing  of  this  case,  that,  indepen- 
dently of  the  decision  of  Great  Western  Baihoay  Company  v.  Blake,^  where  a 
railway  company  issues  a  ticket  for  a  journey,  in  the  course  of  which  the  train 
which  conveys  the  passenger  has  to  pass  along  a  portion  of  the  line  of  a  railway 
belonging  to  another  company  (whether  it  be  under  running  powers,  or  whether 
it  be  under  any  particular  contract  for  a  participation  in  profits,  or  otherwise), 
the  contract  between  the  railway  company  and  the  traveller  to  whom  such  ticket 
is  issued  is,  upon  every  principle  of  the  law,  a  contract  not  only  that  they  will 
not  themselves  be  guilty  of  any  negligence,  but  that  the  passenger  shall  be  car- 
ried with  due  and  reasonable  care  along  the  whole  line,  from  one  end  of  the 
journey  to  the  other."  ^ 

In  this  last  case  no  reference  was  made  by  court  or  counsel  to  a  decision  in 
the  Court  of  Exchequer,  nearly  three  years  previous,  by  the  learned  Chief  Baron 
whose  remarks  we  have  just  quoted.  In  this  case,^  a  train  of  the  defendants, 
while  stationary  upon  their  own  track,  was  run  into  by  another  train.  Several 
railway  companies  had  "running  powers"  over  that  part  of  the  defendants'  line 
on  which  the  collision  occurred,  and  no  evidence  was  given  as  to  whether  the 
moving  train  belonged  to,  or  was  under  the  control  of,  the  defendants.  It  was 
held,  in  the  absence  of  evidence  to  the  contrary,  that  it  must  be  presumed  that 
the  train  which  caused  the  accident  belonged  to,  or  was  under  the  control  of,  the 
defendants.  The  language,  however,  of  I^elly,  C.  B.,  is  noteworthy  as  sug- 
gesting a  distinction  upon  which  the  case  of  Thomas  v.  Bhymney  Baihoay  Com- 
pany *  might  have  been  otherwise  decided.  "  Either  the  train  which  caused  the 
accident,"  said  he,  "belonged  to  the  defendants,  in  which  case,  no  doubt,  they 
would  be  liable,  or  else  the  train  belonged  to  some  other  company  running  on 
the  defendants'  railway  under  the  authority  or  direction  of  the  defendants. 
Supposing  the  latter  alternative  to  be  the  true  one,  it  lay  on  the  defendants  to 
show  that  the  accident  did  not  occur  through  any  fault  of  theirs,  but  that  it 
arose  from  a  violation  of  the  arrangements  made  by  them  with  the  company  to 
which  the  train  belonged, — a  violation  over  which  they  had  no  control."  ^ 
Judgment  was  accordingly  entered  in  this  case  for  the  plaintiff,  but  it  seems 
that  it  would  have  been  otherwise  had  it  been  shown  that  "  the  accident  did  not 
occur  through  any  fault  of  theirs." 

The  suggestion  thrown  out  in  the  last  case  seems  to  have  been  made  the  basis 
of  the  decision  of  the  Court  of  Exchequer  in  the  latest  case  in  the  English 
reports  upon  this  subject,"  although  no  reference  to  this  case  appears  iu  the 
report.  A  railway  company  had  statutory  authority'  to  ruu  over  a  portion  of 
the  defendants'  line,  paying  a  certain  toll  to  the  defendants.  The  signals  at  the 
point  of  junction  between  the  two  lines  were  under  the  control  of  the  defend- 
ants. Owing  to  the  servants  of  the  first  company  negligently  disobeying  these 
signals,  a  train  of  this  company  ran  into  a  train  of  the  defendants,  in  which  the 
plaintiff  was,  whereby  he  was  injured.     There  was  no  negligence  on  the  part  of 

1  7  Hurl.  &  N.  987;  s.  c.  31  L.  J.  (Exch.)  346,  <  L.  R.  5  Q.  B.  226 ;  s.  c.  L.  R.  6  Q.  B.  266. 

ante,  p.  403.  6  l.  R.  3  Exch.  US. 

s  L.  R.  6  Q.  B.  273.  e  Wright  v.  Midland  R.  Co.,  L.  R.  8  Exch. 

3  Ayles  V.  South-Eastern  R.  Co.,  L.  R.  3  137. 
Exch.  146.  7  28  &  29  Vict.,  c.  267 


INJURIES    TO    PASSENGERS.  417 


Parties  to  Action  —  Respondeat  Superior. 

any  of  the  defendants'  servants.  In  an  action  for  the  injuries  sustained,  brought 
by  the  plaintiff  against  his  carrier,  it  was  held  that  he  was  not  entitled  to  recover. 
The  decision  in  this  case  would  seem  to  be  obviously  inconsistent  with  the  con- 
clusion reached  by  the  Exchequer  Chamber  in  the  case  of  Thomas  v.  Bhymney 
Bailway  Company,^  and  it  is  to  be  regretted  that  the  case  was  not  appealed  to 
that  court.  Bramwell,  B.,  realizing  the  binding  authority  of  this  case,  found 
it  necessary  to  obviate  its  effect  by  "distinguishing"  it  from  the  case  at  bar. 
To  do  this  it  was  necessary  to  presume  the  existence  of  a  state  of  facts  contrary 
to  what  appeared  in  both  reports  of  the  case,  viz.,  negligence  on  the  part  of  the 
defendants  in  that  case.  The  case  of  Thomas  v.  Bhymney  Bailway  Company, 
however,  must  be  taken  to  be  an  accurate  expression  of  the  law  of  England 
upon  this  subject,  until  its  authority  is  denied  by  a  court  of  equal  or  higher 
dignity  than  the  Exchequer  Chamber. 

§  4.  Parties  to  Action  —  Respondeat  Superior.  —  It  is  sometimes  an  interest- 
ing question  whether,  in  case  of  an  injury  from  the  negligence  of  other  carriers 
than  his  own,  the  passenger  will  have  a  right  of  action  against  such  other 
carrier.  So  far  as  cases  of  this  kind  are  connected  with  the  rule  of  imputed 
negligence,  they  have  been  considered  at  length  in  a  former  chapter.^  But, 
aside  from  all  considerations  of  imputed  negligence,  has  the  passenger  a  remedy 
against  a  carrier  other  than  his  own,  whose  negligence  has  caused  him  injury? 
This  question  has  been  mooted  on  several  occasions  when  it  was  not  neces- 
sary to  decide  it  because  the  passenger  had  brought  his  action  against  his  own 
carrier.^  The  objection  to  the  action  by  the  passenger  against  any  carrier  other 
than  his  own,  is  the  want  of  privity  of  contract  between  the  parties  in  such  a 
case.  However  true  such  an  objection  might  be  in  a  case  of  mere  non-feasance 
on  the  part  of  such  other  carrier,  it  is  obvious  that  the  want  of  privity  of  contract 
between  the  parties  cannot  avaU  in  an  action  on  the  case  for  a  positive  misfea- 
sance.* 

On  principles  unquestionably  correct,  it  is  held  that  if  a  railroad  company 
receive  upon  its  track  the  cars  of  another  company,  placing  them  under  the 
control  of  its  agents  and  servants,  and  drawing  them  by  its  locomotives  over  its 
own  road  to  their  place  of  destination,  it  assumes  towards  the  passengers  com- 
ing upon  its  road  in  such  cars  the  relation  of  a  common  carrier  of  passengers, 
and  all  the  liabilities  incident  to  that  relation.^    So,  where  the  o^vners  of  a  line 

1  L.  R.  6  Q.  B.  266;  8.  c.  L.  R.  5  Q.  B.  226.  ^  Schopman  v.  Boston  etc.  R.  Co.,  9  Cush. 

2  Ante,  Chap.  VII.  24;  Clynier  v.  Central  R.  Co.,  5  Blatchf.  317; 
8  Martin,  B.,  in   Birkett   v.   Whitehaven       Nashville  etc.  R.  Co.  v.  Carroll,  6  Heisk.  347 

Junction  R.  Co.,  4  Hurl.  &N.  730, 737;  Cromp-  The  agreement  between  the  companies,  in 
ton,  J.,  in  Great  Western  R.  Co.  v.  Blake,  7  such  a  case,  to  allow  the  trains  of  each 
Hurl.  &  N.  987,  994;  Bramwell,  B.,  in  Wright  company  to  run  and  be  drawn  over  their 
V.  Midland  R.  Co.,  L.  R.  8  E.\ch.  137,  143;  respective  tracks  for  the  mutual  interest 
Bell,  J.,  in  Murch  v.  Concord  R.  Co.,  29  X.  H.  and  convenience  of  both  companies,  charges 
9i  3.5.  each  of  the  companies  with  a  duty  toward--- 
*  See  the  illustration  put  by  Bramwell,  B.,  the  servants  of  the  other  to  keep  their  ti-acks 
in  Wriglit  v.  Midland  R.  Co.,  L.  R.  8  Exch.  in  proper  condition  for  this  purpose,  for  a 
137, 143.  See  also  New  Orleans  etc.  R.  Co.  v.  breach  of  which  an  action  may  be  main- 
Bailey,  40  Miss.  395 ;  Fletcher  v.  Boston  etc.  tained  by  such  servants  injured  thereby. 
R.  Co.,  1  Allen,  9;  Illinois  etc.  R.  Co.  v.  Kan-  Nashville  etc.  R.  Co.  v.  Carroll,  supra;  Saw- 
ouse,  39  111.  272.  yer  v.  Burlington  etc.  R.  Co.,  27  Vt.  370. 

27 


418  USE    OF    ANOTHER    CARRIER'S    ROAD. 


Notes. 


of  canal-boats  engaged  in  the  business  of  common  carriers  of  passengers  and 
goods,  chartered  one  of  their  boats  to  another  transportation  company  for  a 
single  trip,  but  retained  charge  of  it  and  navigated  it  with  tlieir  own  master  and 
crew,  they  were  held  liable  to  a  passenger  upon  this  trip  for  the  loss  of  his 
goods. ^  Stage-coach  proprietors  running  a  line  of  coaches  between  two  points, 
tlie  route  being  divided  between  them  into  sections,  the  proprietor  in  charge  of 
each  section  furnishing  his  own  carriages  and  horses,  hiring  drivers  and  paying 
the  expenses  of  his  own  section,  each  sharing  in  the  profits  of  the  entire  line, 
have  been  held  jointly  liable  as  copartners  to  a  passenger  for  a  breach  of  the 
contract  of  carriage  at  any  part  of  the  route.'  However,  it  has  been  held  that 
if  a  passenger  purchase  a  ticket  of  railway  carrier  A.,  by  whose  servants  the 
train  upon  which  he  is  riding  is  transferred  to  the  line  of  caiTier  B.,  and  thence 
by  the  servants  of  this  carrier  transferred  to  the  line  of  carrier  C,  and  while  on 
this  last  line,  but  in  the  charge  of  the  servants  of  carrier  B.,  a  collision  ensues, 
attributable  entirely  to  the  fault  of  the  sen-ants  of  carrier  B.,  this  carrier  alone 
can  be  held  responsible  for  the  injuries  received  by  the  passenger  in  such  acci- 
dent.* 

A  railroad  company  is  also  responsible  for  an  injury  to  a  person  not  a  passen- 
ger, occasioned  by  want  of  proper  care  and  prudence  on  the  part  of  its  servants 
in  the  management  of  a  train  which  is  under  their  exclusive  care,  direction,  and 
control,  although  the  train  belongs  to  another  company.* 

In  this  connection,  it  may  be  stated  that  a  railroad  company  will  be  liable  for 
the  acts  of  their  lessees  and  others  operating  their  road.  The  reason  for  this 
is  very  plain,  as  stated  by  Kedfield,  C.  J. :  "  Unless  we  can  hold  the  defendants 
thus  liable,  they  might  put  their  road  into  the  hands  of  corporations  or  individ- 
uals of  no  responsibility.  It  was  on  this  ground  that  the  English  courts  denied 
the  legality  of  one  road  leasing  itself  to  another,  or  to  private  persons,  and  the 
consequent  loss  of  security  to  the  public,  without  consent  of  Parliament."  ^ 

1  Campbell  v.  Perkins,  8N.  Y.  430.  7  Eng.  Rail.  Cas.  643;  21  L.  J.  (Ch.)  837;  12 

2  Bostwick  V.  Champion,  11  Wend.  571,  Eng.  Law  &Eq.  224;  Winch  v.  Birkenhead  etc. 
581,  per  Xelson,  J.  (s.  c.  affirmed  in  18  Wend.  R.  Co.,  5  De  G.  &  Sm.  562 ;  s.  c.  16  Jur.  1035 ;  13 
175, 181,  per  Chancellor  Walworth) ;  Cole  v.  Eng.  Law  &  Eq.  506.  See  also  Lesher  v.  Wa- 
Goodwin,  19  Wend.  251,  254.  bash  Nav.  Co..  14  111.  85;  Hinde  v.  Wabash 

3  Clymer  v.  Central  R.  Co.,  5  Blatchf.  317.  Kav.  Co.,  15  111.  72;  Chicago  etc.  R.  Co.  v. 
*  Fletcher  V.  Boston  etc.  R.  Co.,  1  Allen,  9.  McCarthy,  20  III.  385;  Ohio  etc.  R.  Co.  v. 
5  Nelson  V.  Vermont  etc.  R.  Co.,  26  Vt.  717,       Dunbar,  20  111.  623;  Illinois  etc.  R.  Co.    v. 

721,  citing  Beman  v.  Rufiord,  1  Sim.  (N.  S.)  Finnegau,  21  111.  646;  Chicago  etc.  R.  Co.  v. 

550;  s.  c.  15  Jur.  014;  20  L.  J.   (Ch.)  537;  6  Whipple,  22  111.  105;  Wyman  v.  Penobscot 

Eng.  Law &Eq.  106;  Great  Northern  R.  Co.  w.  etc.  R.  Co.,  46  Me.  162;  2  Thomp.  on  Neg.,  p. 

Eastern  Counties  R.  Co.,  9  Hare,  306;  ».  c.  904. 


CHAPTEE    XIII. 

LIABILITY    OF    CARRIER    FOR    DAMAGE    TO    PASSENGER 
THROUGH   DEFAULT  OF  CONNECTING  LINES. 


Leading  Cases:  1.  Candee  v.  Pennsylvania  Bailroad  Company.  —  The  carrier 
who  sells  a  ticket  over  connecting  lines  is  held  liable  for 
the  default  of  companies  owning  such  lines. 
2.  Quimhy  v.  Vanderbilt.  —  A  modified  rule  —  The  liability  to 
be  determined  by  evidence  of  the  contract  of  transpor- 
tation. 

Notes:     §  l.  Liability  of  the  carrier  who  makes  a  contract  for  transpor- 
tation over  lines  beyond  his  ovpn. 

2.  Another  view  —  A  thi'ough  ticket  a  distinct  contract  of 

each  carrier. 

3.  Liability  of  the  carrier  on  whose  line  the  injury  or  loss 

occurs. 

4.  Partnership  of  carriers. 

6.  Limitation  of  the  carrier's  liability  for  losses  and  injuries 
occurring  off  his  own  line,  by  contract  and  notice. 


1.  THE  CARRIEE  WHO  SELLS  A  TICKET  OVER  CONNECTING  LINES 
IS  HELD  LIABLE  FOE  THE  DEFAULTS  OF  COMPANIES  OWNING 
SUCH   LINES. 

Candee  v.  Pennsylvania  Railroad  CoMPANr.* 
Supreme  Court  of  Wisconsin.,  1867. 

Hon.  Luther  S.  Dixon,  Chief  Justice. 

"     Orsamus  Cole,  "I    ^  ^ 
,,     ^  T^  }  Judges. 

**     Jason  Downer,  J 

The  Rule  of  Liability  for  Bamag-e  upon  a  Connecting'  Line.  —  Where  a  railroad 
company  sells  a  through  passenger-ticket  by  a  specified  route  to  some  point  out  of  the 
State,  over  lines  of  road  belonging  to  other  companies  in  other  States,  the  undertaking 
of  the  first- named  company  is  to  transport  the  passenger  and  his  baggage  safely  to  such 
place  of  destination,  and  it  is  lialile  to  him  for  any  injury  to  his  person  or  baggage 
occurring  on  any  of  said  connected  lines  of  road  in  violation  of  such  undertaking. 


•  Reported,  21  Wis.  582. 


C419) 


420  INJURIES    ON    CONNECTING    LINES. 

Caudee  v.  Pennsylvania  Kailroad  Compauy. 

Appeal  from  the  Circuit  Court  for  Milwaukee  County. 

Action  for  damages  resulting  from  the  opening  of  plaintiff's  trunk 
and  the  taking  of  goods  therefrom  while  the  same  was  being  carried, 
with  the  plaintiff  herself,  from  Harrisburg,  Pennsylvania,  to  the  city  of 
New  York.  Defendant  appealed  from  an  order  overruling  a  demurrer 
to  the  complaint  as  not  stating  a  cause  of  action,  and  also  for  a  defect 
of  parties  defendant  in  that  the  other  railroad  companies  named  in  the 
complaint  were  not  made  defendants.  The  substance  of  the  complaint 
is  stated  in  the  opinion.  It  appears  therefrom,  also,  that  defendant's 
railroad  extends  from  the  city  of  Pittsburgh  to  the  city  of  Philadelphia 
in  the  State  of  Pennsylvania. 

Byron  Paine^  for  appellant ;  Alfred  L.  Cary,  for  respondent. 

Cole,  J.  —  Since  this  case  comes  up  on  a  demurrer  to  the  complaint, 
it  may  be  well  to  give  the  principal  allegations  of  the  complaint,  to  see 
if  they  show  a  cause  of  action  against  the  defendant. 

It  is  alleged  in  the  complaint  that  the  several  railroad  companies 
therein  mentioned  formed  one  continuous  and  connecting  line  of  road 
for  the  transportation  of  passengers  and  baggage  from  the  city  of  Mil- 
waukee to  the  city  of  New  York  ;  that  by  virtue  of  an  arrangement  exist- 
ing between  these  companies,  each  company  issued  and  sold  tickets  for 
the  transportation  of  passengers  and  baggage,  which  were  good  over  the 
roads  of  the  other  companies  ;  that  at  the  city  of  Harrisburg  there  is  a 
railroad  branching  off  from  the  defendant's  road  and  running  to  New 
York  by  the  way  of  AUentown,  and  commonly  known  as  the  "Allen- 
town  Line  ; "  that  by  reason  of  some  arrangement  existing  between  the 
defendant  and  the  operators  of  the  "AUentown  Line,"  tickets  for  the 
transportation  of  passengers  and  baggage  over  the  defendant's  road 
were  equally  good  over  the  "AUentown  Line."  It  is  further  alleged 
that  about  the  22d  of  February,  1865,  the  plaintiff  purchased  from  the 
Chicago  and  Milwaukee  Railway  Company  a  coupon  ticket  issued  by 
that  company,  paying  therefor  the  then  established  rate  for  one  first- 
class  passage  from  Milwaukee  to  the  city  of  New  York ;  that  she  had 
the  option  of  using  her  ticket  over  the  "AUentown  Line,"  instead  of 
going  by  the  way  of  Philadelphia ;  that  she  delivered  her  trunk  to  the 
Chicago  and  Milwaukee  Company  at  Milwaukee,  receiving  therefor  a 
through  check  for  the  trunk  to  the  city  of  New  York  by  way  of  the 
"AUentown  Line."  It  is  further  averred  that  when  the  plaintiff  arrived 
at  the  cit3'  of  Harrisburg  on  the  defendant's  road,  where  the  "AUen- 
town Line"  branches  off,  she  determined  to  go  by  the  way  of  Philadel- 
phia, instead  of  going  over  the  "AUentown  Line  ;  "  that  thereupon  the 
defendant  company  took  up  the  check  which  the  plaintiff  had  received 


THE  CONTRACT  OF  TRANSPORTATION.  421 

Supreme  Court  of  Wisconsin. 

for  her  trunk  from  the  Chicago  and  Milwaukee  Company,  and  gave  in 
exchange  therefor  a  through  check  from  Harrisburg  to  New  York  by 
the  way  of  Philadelphia.  It  is  stated  that  at  the  time  the  trunk  was 
re-checked  at  Harrisburg,  the  plaintiff  was  informed  and  believed  that 
the  same  was  in  good  order,  but  that  when  it  arrived  at  New  York,  the 
lock  had  been  broken  and  the  articles  there  mentioned  had  been  taken 
therefrom.  It  is  not,  however,  alleged  that  the  defendant  company  was 
guilty  of  any  negligence  on  its  part  in  transporting  the  trunk  over  its 
road,  nor  that  the  loss  happened  while  the  trunk  was  in  the  possession 
of  that  company,  or  under  the  control  of  its  agents  and  employees. 
The  question  therefore  arises,  upon  these  facts,  whether  a  cause  of 
action  is  stated  against  the  defendant. 

It  appears  to  us  that  there  is  not  enough  set  forth  to  show  that  the 
defendant  is  liable  for  the  value  of  the  articles  lost.  According  to  our 
understanding  of  the  matter,  the  ticket  and  check  given  by  the  Chicago 
and  Milwaukee  Railway  Company  imply  a  special  understanding  by  that 
company  to  safely  transport  and  carry,  or  cause  to  be  safely  transported 
and  carried,  the  plaintiff  and  her  baggage  over  the  roads  mentioned  in 
the  complaint,  from  Milwaukee  to  the  city  of  New  York.  This,  we 
think,  must  in  legal  contemplation  be  the  nature  and  extent  of  the 
contract  entered  into  and  assumed  by  that  company  when  it  sold  the 
plaintiff  the  through  ticket,  gave  a  through  check  for  the  trunk,  and 
received  the  fare  for  the  entire  route.  This  is  the  doctrine  of  the  case 
of  Illinois  Central  Railroad  Company  v.  Copeland,^  and  we  are  dis- 
posed to  follow  it  as  laying  down  a  safe,  sound,  and  reasonable  rule  on 
this  subject.  In  the  case  of  Peet  v.  Chicago  and  North -Western  Rail- 
way Company  ^  this  court  affirmed  an  analogous  principle,  by  holding 
that  where  a  railroad  company  contracted  as  a  carrier  to  transport 
goods  for  the  whole  line,  it  became  liable  for  any  injury  which  might 
happen  to  them  beyond  the  terminus  of  its  own  road,  while  under  the 
control  of  other  carriers.  So,  here,  the  Chicago  and  Milwaukee  Com- 
pany received  the  whole  passage-money  from  Milwaukee  to  New  York 
city, — fare  which  covered  the  carriage  of  both  the  plaintiff  and  her 
baggage  safely  to  the  latter  city.  It  assumed  to  give  a  through  check 
for  the  trunk,  and  a  through  ticket  which  entitled  the  holder  to  a  first- 
class  seat  in  the  cars  passing  over  the  successive  roads.  It  seems  to 
us,  therefore,  perfectly  reasonable  and  proper  to  hold  that  company  to 
the  full  measure  of  liability  assumed  by  it  in  its  contract,  and  to  say 
that  it  is  liable  for  losses  happening  beyond  the  line  of  its  own  road. 
It  was  contended  by  the  counsel  for  the  appellant  that  the  facts  do  not 

1  24  Til.  SS2.  2  lOMM".  118. 


4:22  INJURIES    ON    CONNECTING    LINES. 

Candee  v.  Penusylvania  Railroad  Company. 

show  even  a  contract  on  the  part  of  the  Chicago  and  Milwaukee  Com- 
pany to  transport  the  plaintiff  and  her  baggage  for  the  entire  route  ; 
that  the  tickets  issued  by  it  should  rather  be  regarded  as  distinct  tickets 
for  each  road,  sold  by  that  company  merely  as  agent  for  the  other  com- 
panies ;  and  that  each  company  is  only  Uable  for  such  losses  as  happen 
on  its  own  road.  But  it  is  very  obvious  that  this  rule  would  at  once 
destroy  all  the  convenience  and  benefits  of  the  through-ticket  system, 
since  it  would  impose  upon  the  passenger  the  necessity  of  both  looking 
after  and  examining  the  condition  of  his  baggage  at  the  terminus  of 
each  road ;  otherwise  it  would  be  impossible  for  him  to  prove  where  the 
loss,  occurred.  "We  deem  it  a  better  rule  to  hold  that  the  Chicago  and 
Milwaukee  Company,  by  issuing  the  through  ticket  and  check,  con- 
tracted to  carry  the  plaintiff  and  her  baggage  the  entire  route.  Had 
the  complaint  alleged  that  the  loss  happened  in  consequence  of  the 
negligence  of  the  agents  and  employees  of  the  defendant  company, 
and  while  the  trunk  was  being  transported  over  its  road,  then,  perhaps, 
the  action  might  be  maintained  notwithstanding  the  undertaking  of  the 
first  company.     But  there  is  no  such  averment  in  the  complaint. 

It  seems  to  have  been  supposed  that  the  defendant  company  ren- 
dered itself  liable  for  the  loss  in  this  case  because  at  Harrisburg  it 
took  the  baggage-check  originally  given  by  the  Chicago  and  Milwaukee 
Company  and  gave  its  own  through  check  for  the  trunk  to  New  York 
by  the  way  of  Philadelphia.  But  this  exchange  was  made  simply  in 
accordance  with  the  terms  of  the  contract  entered  into  at  Milwaukee. 
By  that  contract  the  plaintiff  had  the  option  of  using  her  ticket  over 
the  "Allentown  Line,"  or  to  go  by  the  way  of  Philadelphia.  True, 
her  trunk  had  been  checked  by  the  way  of  Allentown,  yet  when  she 
reached  Harrisburg  she  had  the  privilege  of  electing  whether  she  would 
pass  over  the  "Allentown  Line  "  or  go  the  other  route.  She  contracted 
for  this  option  in  the  first  instance,  and,  therefore,  surrendering  the 
check  which  she  had  received  from  the  Chicago  and  Milwaukee  Company, 
and  taking  the  defendant's  check  in  exchange,  was  but  carrying  out 
this  undertaking  and  agreement.  But  we  do  not  think  the  effect  of 
this  transaction  was  to  change  the  relation  of  the  parties,  by  either 
restricting  or  enlarging  the  liability  of  the  defendant  compau}',  any 
more  than  though  the  trunk  had  been  originally  checked  by  the  Phila- 
delphia route. 

In  anticipation  that  we  might  hold,  upon  the  facts  stated  in  the  com- 
plaint, that  the  defendant  contracted  to  carry  the  plaintiff's  trunk 
beyond  its  own  road  to  the  city  of  New  York,  the  counsel  for  the  appel- 
lant contends  that  the  defendant  had  no  power  to  make  such  a  contract. 
This  objection,  that  a  railroad  company  cannot  incur  liability  beyond 


THE  CONTRACT  OF  TRANSPORTATION.  423 

Court  of  Appeals  of  New  York. 

its  own  route  by  an  express  contract,  is  overruled  by  what  has  been 
already  said  in  this  opinion,  as  well  as  by  what  (if  not  expressly)  is  at 
least  by  implication  decided  in  Peet  v.  Chicago  and  North-  Western 
Railway  Company.'^  It  is  unnecessary  to  enter  upon  any  discussion 
of  this  question  at  this  time.  The  remarks  already  made  dispose  of 
this  appeal.  My  own  opinion,  however,  is  that  the  great  weight  of 
authority,  not  only  in  England  but  in  this  country,  holds  that  it  is  com- 
petent for  a  railroad  company  to  contract  for  the  transportation  of 
passengers  and  goods  beyond  the  terminus  of  its  road,  and  I  am  dis- 
posed to  follow  these  decisions.  But  I  leave  the  discussion  here  for 
the  present. 

It  follows  from  the  views  we  have  expressed,  that  the  order  of  the 
Circuit  Court  overruling  the  demurrer  to  the  complaint  must  be  reversed, 
and  the  cause  remanded  for  further  proceedings  according  to  law. 

DowNER',  J.  —  I  concur  in  the  opinion  that  the  defendant  corporation 
is  not  liable  unless  the  loss  occurred  while  the  baggage  was  in  its 
custody ;  and  as  there  is  no  averment  in  the  complaint  to  that  effect, 
the  demurrer  should  have  been  sustained.  But  I  express  no  opinion  as 
to  the  liability  of  the  corporation  issuing  the  ticket,  for  losses  on  the 
roads  of  the  other  corporations. 

Order  reversed  and  cause  remanded. 


2.   A   MODIFIED    RULE  —  THIS    LIABILITY   TO   BE    DETERMINED    BY 
EVIDENCE  OF  THE  CONTRACT  OF  TRANSPORTATION. 

QUIMBY    V.    VaNDERBILT.* 

Court  of  A2:)peals  of  New  York,  1858. 

Hon.  Alexander  S.  Johnson,  Chief  Justice. 

*'  George  F,  Comstock,  1 

"  Samuel  L.  Selden,        |-  Judges. 

"  Hiram  Denio, 

"  James  J.  Roosevelt, 

"  Ira  Harris, 

"  Daniel  Pratt, 

"  Theron  R.  Strong, 


Justices  of  the  Supreme  Court 
and  ex-offlcio  Judges  of  the 
Court  of  Appe'als. 


1.  The  Rule  of  Liability  for  Damag-es  upon  a  Connectins:  Line.  —An  owner  of  one  of 
several  lines  for  the  trausijortatiou  of  iKisseiigcrs,  running  in  connection  over  different 

•  Reported,  17  N.  Y.  306. 

'  Supra. 


424  INJURIES    ON    CONTRACTING    LINES. 


Quimby  v.  Vanderbilt. 

routes,  may  contract  as  principal  for  the  conveyance  of  a  passenger  over  the  whole 
route.  Whether  he  does  so  contract  is  a  matter  to  be  determined  by  evidence.  He 
may,  however,  specially  exempt  himself  from  liability  for  the  defaults  of  other  carriers. 
A  contract  by  the  first  carrier  for  transportation  over  other  lines,  at  his  risk,  may  be 
established  by  circumstances,  notwithstanding  the  passenger  receives  tickets  for  the 
different  lines,  signed  by  their  separate  agents. 

a.  What  the  Ticket  is.  — Passage-tickets  are  generally  to  be  regarded  as  tokens  rather 
than  contracts,  and  are  not  within  the  rule  excluding  parol  evidence  to  vary  a  vrritten 
agreement. 

3.  The  Case  stated. — The  defendant  was  the  owner  of  steamships  sailing  between  New 
York  and  the  eastern  port  of  the  transit  route  across  the  Isthmus  of  Nicaragua. 
He  was  also  part-owner  of  steamships  forming  part  of  a  line  sailing  between  the 
western  port  of  the  transit  route  and  San  Francisco.  He  was  furnished  by  the  cor- 
poration owning  and  managing  the  transit  route  with  passage -tickets  for  the  con- 
veyance of  persons  across  the  isthmus  by  their  steamboats  and  carriages,  which  he 
sold  to  passengers  who  embarked  in  his  steamships  from  New  York,  and  returned 
those  unsold.  But  the  defendant  owned  no  interest  in  this  transit  route,  nor  was  he 
an  agent  of  it,  or  employed  by  it  in  any  way.  Upon  the  door  of  the  office  at  New 
York,  occupied  by  one  Allen,  the  defendant's  agent,  and  which  he  frequently  visited, 
was  posted  an  advertisement  headed,  '' V^anderbilt's  line  between  New  York  and  San 
Francisco,"  and  signed  "Allen,  agent,"  in  which  the  route  by  the  steamships  on 
both  oceans  and  across  the  isthmus  was  described  and  commended.  The  agent  at 
that  office  sold  to  the  plaintiff,  for  a  gross  sum,  three  tickets,  which  severally  im- 
ported that  he  was  entitled  to  be  carried  to  and  across  the  isthmus,  and  thence  upon 
a  particular  vessel  on  her  next  voyage  to  San  Francisco,  and  delivered  to  him  a  card, 
signed  by  himself,  describing  the  route,  and  stating  that  passengers  are  speedily  con- 
veyed across  the  isthmus  by  the  Nicaragua  transit.  The  plaintiff  was,  however,  a  long 
time  delayed  upon  this  transit  route,  and  failed  to  reach  the  Pacific  terminus  until 
the  vessel  in  which  he  had  secured  passage  had  sailed.  Not  being  provided  with  other 
means  of  transportation,  he  was  obliged  to  return  to  New  York,  after  long  delay  in  a 
sickly  climate  and  consequent  injury  to  his  health.  It  was  held  that  the  foregoing 
was  sufficient  to  authorize  a  jury  to  find  that  the  defendant  contracted  as  principal 
for  the  prompt  conveyance  of  the  plaintiff  across  the  isthmus,  and  to  charge  him  with 
the  damages  resulting  from  detention. 

The  plaintiff  sued  the  defendant  in  the  New  York  Common  Pleas, 
and  complained  that  shortly  prior  to  the  oth  of  March,  1852,  the 
defendant,  being  a  carrier  of  passengers  between  New  York  and  Cali- 
fornia, undertook,  in  consideration  of  $250  paid  by  the  plaintiff,  to 
carry  him  from  New  York  to  San  Francisco  by  the  route  across  the 
Isthmus  of  Nicaragua,  and  that  such  passage,  on  the  Pacific  coast  of 
the  continent,  should  be  in  the  second  cabin  of  the  steamship  Inde- 
pendence, on  her  then  next  voyage  to  San  Francisco ;  that,  pursuant  to 
the  contract,  the  plaintiff  was  carried  to  the  port  of  San  Juan  de  Nic- 
aragua, on  the  Atlantic  side  of  the  isthmus,  but  the  defendant  neglected 
to  provide  for  his  conveyance  across,  on  account  of  which  he  was 
delayed  a  long  time ;  and  when  he  finally  arrived  at  San  Juan  del  Sur, 
on  the  Pacific  side,  the  Independence  had  sailed,  and  the  defendant 
neglected  to  furnish  any  means  for  the  continuance  of  the  plaintiff's 
journey ;  whereby  he  was  forced  to  return  to  New  York  at  his-  own 
expense,  after  being  exposed  for  a  considerable  time  to  the  sickly  cli- 
mate of  the  isthmus,  to  the  injury  of  his  health,  etc. 


iHE  CONTKACT  OF  TKANSPORTATION.  425 

Court  of  Appeals  of  New  York. 

The  answer  denied  the  contract  stated,  but  admitted  an  agreement 
by  which  the  defendant,  as  the  owner  of  a  line  of  steamships  between 
New  York  and  Nicaragua,  undertook  to  carry  the  plaintiff  to  the  latter 
point;  and  it  alleged  that  the  plaintiff  contracted  with  the  "  Accessory 
Transit  Company  of  Nicaragua"  for  his  passage  across  the  isthmus, 
and  with  Robert  &  G.  L.  Schuyler,  the  owners  of  a  steamship  on  the 
Pacific  coast,  for  his  passage  by  water  from  the  western  side  of  the 
isthmus  to  San  Francisco ;  that  one  Daniel  B.  Allen,  acting  separately 
as  the  agent  for  those  several  lines,  furnished  the  plaintiff  with  separate 
tickets,  at  the  price  of  $90  for  the  Atlantic  passage,  $35  for  that  across 
the  isthmus,  and  $125  for  that  on  the  Pacific  line.  The  other  material 
allegations  of  the  complaint  were  put  in  issue. 

On  the  trial  in  the  Common  Pleas,  the  plaintiff  proved  that  he  went 
to  an  office  situated  at  Battery  Place,  New  York,  and  inquired  the  price 
of  a  through  ticket  to  San  Francisco,  and  whether  there  would  be  any 
delay ;  he  was  told  that  the  price  was  $250,  and  that  he  would  not  be 
delayed  over  two  or  three  days  ;  that  he  thereupon  made  an  agreement 
with  D.  B.  Allen,  the  person  in  charge  of  the  office,  who  is  a  son-in- 
law  of  the  defendant,  for  his  passage  to  San  Francisco  for  $250 ;  that 
his  name  was  taken  down,  and  he  was  allowed  to  select  his  berth  in  the 
steamships.  Allen  gave  him  a  card  and  three  tickets ;  the  card  was  in 
these  words :  — 

"  Vanderbilt's  Line  for  California,  via  Nicaragua.  — Nearly  1,000 
miles  shorter  than  any  other  route.  Composed  of  the  new  first-class 
steamships  Northern  Light,  Prometheus,  Daniel  Webster;  connect- 
ing by  the  Nicaragua  transit  route,  having  but  twelve  miles  of  land 
carriage,  by  which  passengers  are  speedily  and  comfortably  conveyed 
through  a  beautiful  and  healthful  country,  with  the  steamers  North 
America,  Pacific,  Independence,  S.  S.  Lewis,  one  of  which  will  leave 
San  Juan  del  Sur,  the  Pacific  terminus  of  the  transit  route,  with  the 
passengers  for  San  Francisco  without  delay. 

"N.  B.  —  Travellers  to  the  golden  region  are  cautioned  against  the 
misrepresentations  of  those  in  the  service  of  rival  lines.  They  are 
solicited  to  call  at  the  only  office  of  this  line,  No.  9  Battery  Place  (up- 
stairs), where  full  and  correct  information  may  be  obtained,  and  where, 
only,  passages  may  be  secured.  D.  B.  Allen,  Agent." 

Two  of  the  tickets  were  for  the  steamships,  and  both  these  were 
headed  "  Vanderbilt's  Line."  One  stated  the  plaintiff  had  paid  his  pas- 
sage in  the  steamship  Prometheus  on  her  next  voyage  from  New  York 
to  San  Juan  de  Nicaragua,  and  the  other  that  he  had  paid  his  passage 
in  the  steamship  Independence  on  her  next  voyage  from  San  Juan  del 


426  INJURIES    ON    CONTKACTING    LINES. 

Quimby  v.  Vanderbilt. 

Sur  to  San  Francisco.  They  were  signed,  "D.  B.  Allen,  agent,  per  J. 
Rintoul."  The  other  ticket  stated  that  the  plaintiff  was  entitled  to  a 
passage  across  the  Isthmus  of  Nicaragua  by  the  line  of  the  "Accessory 
Transit  Company,"  and  it  was  signed  "Isaac  C.  Lea,  secretary." 

The  evidence  to  connect  the  defendant  with  the  office  where  this 
transaction  took  place,  and  its  business,  was  as  follows :  He  owned  the 
vessels  on  the  Atlantic  side,  including  the  Prometheus,  and  D.  B.  Allen 
was  his  agent  to  manage  the  business  which  was  transacted  by  means  of 
them.  Allen  was  also  the  agent  for,  and  had  the  general  control  and 
management  of,  the  line  through  to  San  Francisco.  There  were  two 
apartments,  the  business  office  and  the  private  office  of  Allen,  in  the 
latter  of  which  the  defendant  had  a  desk,  and  the  usual  entrance  to  the 
inner  or  private  office  was  through  the  other.  The  defendant  was  at 
the  office  sometimes  two  or  three  times  a  day,  but  he  was  not  there 
every  day.  He  was  consulted  by  Allen  about  the  affairs  of  the  line, 
and  the  witness,  who  was  employed  in  the  business  upon  the  isthmus, 
swore  that  the  defendant  was  the  chief  manager  of  the  line,  and  that 
Allen  was  the  principal  agent.  There  was  an  advertisement  published 
by  Allen  in  the  daily  papers  in  New  York,  and  posted  on  a  board  at  the 
door  of  the  office,  and  which  was  read  by  the  plaintiff  when  he  came  to 
engage  his  passage,  as  follows :  — 

"  Vanderbilt's  Nevt  Line  between  New  York  and  San  Francisco  — 
The  only  Through  Line  via  Nicaragua.  —  A  number  of  days  shorter 
than  any  other  route.  Composed  of  the  following  first-class  steamships 
between  New  York  and  San  Juan  de  Nicaragua :  Prometheus,  Captain 
Churchill ;  Daniel  Webster,  Captain  Baldwin.  And  between  San  Juan 
del  Sur  and  San  Francisco :  North  America,  Captain  Blethen ;  Pacific, 
Captain  Jarv'is ;  Independence,  Captain  Wakeman. 

"These  steamers  are  all  new,  were  built  expressly  for  this  route,  and 
for  speed,  safety,  and  accommodations  are  unsurpassed.  From  San 
Juan  de  Nicaragua  to  San  Juan  del  Sur,  passengers  will  be  promptly 
conveyed  over  the  new  transit  route  of  the  Nicaragua  company,  having 
but  twelve  miles  of  land  transportation,  and  at  that  point  embark  in  one 
of  the  above-named  Pacific  steamers  for  San  Francisco. 

"The  great  saving  of  distance  by  this  route  over  others  heretofore 
established,  and  a  speedy  and  comfortable  transit  between  the  two 
oceans,  through  a  beautiful  and  healthful  country,  offer  inducements  to 
the  traveUing  pubUc  equalled  by  no  other  line. 

"D.  B.  Allen." 

The  Accessory  Company  is  a  corporation  created  bj^  the  laws  of  the 
State  of  Nicaragua,  in  Central  America,  but  the  corporators  or  stock- 


THE  CONTRACT  OF  TRANSPORTATION.  427 

Court  of  Appeals  of  New  York. 

holders  are  residents  of  the  city  of  New  York,  and  the  defendant  is  one 
of  thera.  It  has  a  president  and  board  of  directors  and  other  officers. 
This  company  had  no  interest  in  the  steamships,  nor  (as  the  secretary 
swore)  any  thing  to  do  with  them.  Its  business  was  to  transport  pas- 
sengers from  one  sea  to  the  other.  So  far  as  it  issued  passage-tickets 
in  New  York,  they  were,  as  a  general  thing,  dehvered  to  the  defendant 
before  the  sailing  of  each  steamship,  he  ordering  such  number  as  he 
wanted ;  and  a  day  or  two  after  the  ship  sailed  he  would  pay  for  so 
many  as  he  had  sold,  at  S35  each,  and  return  the  rest.  If  other  per- 
sons bought  tickets  of  the  company,  which  was  not  usual,  they  paid  $40 
each. 

One  W.  H.  Brown  was  the  general  owner  of  the  steamship  Inde- 
pendence, but  at  the  time  of  this  transaction  R.  &  G.  L.  Schuyler 
had  an  absolute  title  in  form  to  her,  as  mortgagees,  and  they  were,  as 
R.  Schuyler  swore,  mortgagees  in  possession.  She  was  run  as  one  of 
the  ships  of  the  line  from  New  York  to  California,  under  a  contract 
originally  made  with  Brown,  which  was  continued  by  the  Schuylers  after 
they  had  acquired  the  title.  They  had  nothing  to  do  with  her  direction, 
management,  or  expenses ;  these  matters  being  under  the  charge  of 
Allen,  who  was  the  agent  of  the  Schuylers,  and  accounted  to  them  for 
the  clear  profits,  after  paying  expenses  and  deducting  a  commission  to 
himself.  Robert  Schuyler  swore  that  he  wanted  to  withdraw  this  vessel 
from  the  line,  and  had  so  told  the  defendant,  and  the  defendant  had 
agreed  that  she  might  be  withdrawn  as  soon  as  she  could  be  spared. 
The  other  ships  on  the  Pacific  side,  viz.,  the  North  America  and  Pacific, 
were  owned,  one-half  of  each  by  the  defendant,  and  the  other  half  by 
other  parties.  Allen  swore  positively  that  the  route  across  the  isthmus 
was  not  a  part  of  the  line,  and  that  neither  he  (the  witness)  nor  the  defend- 
ant had  any  thing  to  do  with  that  part  of  the  route,  except  to  sell  the 
tickets  of  the  Accessory  Transit  Company  ;  and  Mr.  Lea,  the  secretary 
of  the  company,  swore  that  Allen  was  not  its  agent.  Allen,  however, 
admitted  that  when  persons  applied  for  passage  to  California  by  his  line, 
they  were  charged  by  him  the  gross  sum  of  $250,  and  were  not  informed 
as  to  the  distribution  of  that  sum  among  the  proprietors  of  the  several 
routes. 

It  appeared  that  the  plaintiff  sailed  from  New  York  in  the  Prome- 
theus on  the  5th  and  arrived  at  Nicaragua  on  the  15th  of  March.  No 
means  were  provided  for  taking  him  across  the  isthmus,  and  he  was 
obliged  to  remain  there  more  than  a  week,  when  he  embarked  in  a 
vessel  going  up  the  river.  At  Castillo  Rapids  he  ascertained  that  the 
Independence  had  sailed  for  San  Francisco.     When  he  arrived  at  the 


428  INJURIES    ON    CONTRACTING    LINES. 

Quimby  v.  Vanderbilt. 

port  on  the  Pacific  side,  there  was  no  vessel  to  take  him  on ;  and 
although  the  company  sent  off  two  other  steamers  while  he  was  there, 
he  was  not  permitted  to  embark  on  board  either  of  them.  He  finally 
found  his  way  back  to  San  Juan  de  Nicaragua,  and  from  thence  obtained 
a  passage  to  New  York  at  his  own  expense.  A  steamer  of  the  line, 
running  on  the  Pacific  side,  had  been  lost  shortly  before  this  time,  and 
this  was  the  reason  why  the  company  could  not  take  on  all  the  passen- 
gers arriving  after  the  Independence  had  sailed. 

The  defendant's  counsel  maintained  that  there  was  not  evidence 
sufficient  to  be  submitted  to  the  jury  of  a  contract  by  the  defendant  to 
carry  the  plaintiff  through  to  San  Francisco,  and  requested  that  the 
judge  would  charge  to  that  effect;  but  he  declined  so  to  charge,  and 
submitted  the  question  to  the  jury  whether  such  a  contract  had  been 
proved.  The  defendant's  counsel  excepted.  Verdict  for  the  plaintiff 
for  $625.  After  an  affirmance  at  General  Term,  the  defendant  appealed 
here.  Several  other  exceptions  were  taken  on  the  trial  in  the  Common 
Pleas  which  werfe  not  relied  on  here. 

C.  A.  Rapello,  for  the  appellant;  Richard  Goodman,  for  the  respon- 
dent. 

Denio,  J.  —  The  plaintiff  relies  upon  an  express  contract,  by  which, 
as  he  alleges,  the  defendant  engaged  to  cause  him  to  be  carried  from 
New  York  to  San  Francisco ;  and  the  single  question  of  law  involved 
in  the  case  is  whether  there  was  evidence  of  such  a  contract  proper  to 
be  submitted  to  the  jury.  If  it  should  be  conceded  that  there  was  no 
such  connection  between  the  three  lines  of  transportation  as  would 
entitle  the  defendant,  as  the  representative  of  the  whole,  to  contract  in 
their  behalf  for  the  carriage  of  pei'sons  and  property  the  entire  distance 
from  New  York  to  California,  it  was  quite  competent  for  him  to  bind 
himself  to  the  plaintiff  by  an  express  contract  not  only  to  carry  him 
over  his  own  proper  portion  of  the  line,  but  that  the  other  transporta- 
tion companies  should  successively  take  him  up,  upon  his  arrival  at  the 
commencement  of  their  respective  routes,  and  carry  him  over  the  same 
until  he  should  arrive  at  his  destination  at  San  Francisco.  The  EngHsh 
courts  hold  that  where  property  is  embarked  upon  a  railroad  or  other 
line  of  transportation,  addressed  to  a  place  beyond  the  terminus  of  the 
line,  but  which  may  be  reached  by  other  lines  of  carriage  running  in 
connection  with  it,  a  contract  arises  between  the  first-mentioned  com- 
pany and  the  owner  of  the  property  that  it  shall  be  carried  to  its  place 
of  destination  ; '  and  this  court  has  determined  that  the  agent  of  a  rail- 

1  Muschamp  v.  Lancaster  etc.  R.  Co.,  8  Mee.  &  W.  421 ;  Watson  v.  Ambergate  etc.  R.  Co., 
3  Eng.  Law  &  Eq.  497. 


THE  CONTRACT  OF  TRANSPORTATION.  429 

Court  of  Appeals  of  New  York. 

way  company  may  bind  his  principals  by  a  contract  for  carriage  over 
other  roads  running  in  connection  with  his  own.^  The  late  Court  of 
Errors,  in  my  opinion,  very  wisely  limited  the  English  rule  above  men- 
tioned, by  holding  that  evidence  was  admissible  to  show  that  by  the 
course  of  business  a  transportation  line  receiving  property  without  any 
express  contract  undertook  only  to  carry  it  over  its  own  line,  and  then 
place  it  in  the  hands  of  the  carriers  over  the  next  route ;  and  that  it 
discharged  its  obligation  to  the  owners  by  delivering  it  to  a  responsible 
company  next  in  order  in  its  passage  to  the  place  of  destination. ^  All 
the  cases  assume  that  the  company  to  which  the  goods  are  delivered 
ma}'-  lawfully  contract  for  the  performance  of  the  other  lines  running  in 
connection  with  its  own,  as  well  as  for  its  proper  route ;  and  there  is  no 
difference  in  principle,  in  this  respect,  between  contracts  for  the  caf- 
riage  of  persons  and  for  the  transportation  of  property. 

But  the  defendant's  counsel  contends  that  the  tickets  which  the  plaintiff 
received  for  the  passage  over  the  several  routes  are,  in  themselves, 
written  evidence  of  the  bargains  by  which  he  engaged  his  passage,  and 
that  he  is  precluded  from  contradicting  them  by  parol  testimony  of  an 
entire  contract  with  the  defendant.  We  do  not  think  this  a  sound  posi- 
tion. The  tickets  do  not  purport  to  be  contracts.  They  are  rather  in 
the  nature  of  receipts  for  the  separate  portions  of  the  passage-money ; 
and  their  office  is  to  serve  as  tokens  to  enable  the  persons  having  charge 
of  the  vessels  and  carriages  of  the  companies  to  recognize  the  bearers 
as  parties  who  were  entitled  to  be  received  on  board.  They  are  quite 
consistent  with  a  more  special  bargain.  Being  the  usual  permits  which 
are  issued  for  the  guidance  of  the  masters  of  the  vessels  and  the  con- 
ductors of  the  carriages,  they  would  necessarily  be  given  to  the  pas- 
senger to  facilitate  the  transaction  of  business,  whatever  the  nature  of 
his  arrangement  for  passage  may  have  been.  Their  character  as  mere 
tokens  is  shown  by  the  fact  that  the  defendant  received  them  in  large 
numbers  from  the  Transit  Company,  not  as  an  agent  of  that  company 
for  the  purpose  of  making  bargains  in  its  behalf  with  others,  but  to 
furnish  them  to  persons  with  whom  he  expected  to  deal  on  his  own 
account.  In  Hart  v.  Rensselaer  and  Saratoga  Railroad  Company, 
just  referred  to,  the  plaintiff  had  separate  tickets  for  each  of  the  roads 
over  which  she  travelled,  but  she  was  permitted  to  recover  against  one 
of  the  companies,  though  unable  to  show  that  her  baggage  was  lost  on 
the  route  of  that  company.     "We  do  not  say  that  the  receiving  of  sep- 

1  Hart  V.  Rensselaer  etc.  R.  Co.,  8  N.  Y.  37.  «  Vau  Sautvoord  v.  St.  John,  6  Hill,  157. 


430  INJURIES    ON    CONTK ACTING   LINES. 

Quimby  v.  Vanderbilt. 

arate  tickets  for  the  different  lines  is  not  evidence  of  some  weight  upon 
the  question  whether  the  contract  was  entire,  but  we  hold  that  it  does 
not  come  within  the  rule  which  excludes  parol  testimony  respecting  a 
contract  which  has  been  reduced  to  writing. 

There  was  positive  evidence  of  a  verbal  contract  between  the  plaintiff 
and  Allen  for  carrying  the  former  from  New  York  to  San  Francisco. 
The  plaintiff  applied  at  the  office  to  obtain  such  passage,  and  he  was 
promised  it  for  $250.  The  tickets  were  then  given  him  to  secure  his 
admission  to  the  different  vehicles  of  the  line.  In  this,  Allen  professed 
to  act  as  the  agent  or  clerk  of  some  one.  So  far  as  the  steamships  on 
the  Atlantic  were  concerned,  he  was  the  agent  of  the  defendant,  and  no 
question  is  made  but  that  he  was  authorized  to  bind  the  defendant  thus 
far.  It  is  equally  clear  to  my  mind  that  he  was  authorized  to  bind  him 
by  contracts  for  carrying  passengers  across  the  isthmus.  The  Transit 
Company  did  not,  as  a  general  thing,  sell  any  tickets  to  travellers,  nor 
did  they  make  any  contracts  for  passage  except  with  the  defendant. 
To  him  they  sold  tickets,  in  the  nature  of  permits  for  passage  over  their 
route,  in  such  quantities  as  he  chose  to  purchase.  It  is  proved  that 
neither  he  nor  Allen  were  agents  for  the  Transit  Company.  When  he 
dealt  with  a  traveller,  therefore,  he  bargained  on  his  own  account,  and 
not  on  behalf  of  the  Transit  Company.  He  might  have  charged  more 
or  less  than  he  paid  that  company.  It  was  certainly  possible  for  him  to 
dispose  of  one  of  these  permits  by  an  arrangement  with  the  passenger, 
so  special  that  the  latter  should  have  no  recourse  to  him ;  but  if  he 
engaged,  in  terms,  that  the  purchaser  should  be  carried  across  the  isthmus, 
and  gave  him  one  of  the  Transit  Company's  tickets  to  show  his  title  to 
be  admitted  on  board  their  boats  and  carriages,  he  was  the  principal  in 
that  contract,  and  must  answer  for  its  breach.  He  placed  these  tickets 
in  the  hands  of  Allen,  who  was  accustomed  to  deliver  them  to  passen- 
gers in  connection  with  such  contracts  as  the  one  he  made  with 
the  plaintiff.  Allen  admitted,  on  his  examination,  that  he  charged  the 
gross  sum  of  $250  for  the  entire  passage,  without  any  specification  of 
the  amount  belonging  to  the  separate  branches  of  the  line ;  and  there  is 
not  the  slightest  evidence  that  on  any  occasion  he  sold  the  tickets  to  be 
taken  at  the  risk  of  the  passenger,  or  in  connection  with  any  arrange- 
ment except  such  as  I  have  mentioned.  The  facts  that  the  defendant 
purchased  the  tickets  of  the  Transit  Compaay ;  that  he  placed  them  in 
the  hands  of  his  agent,  Allen,  for  delivery  to  passengers  ;  that  the  latter 
was  accustomed  to  dispose  of  them  in  connection  with  contracts  for  pas- 
sage over  the  entire  route ;  and  that  he  transacted  the  business,  in  an 


THE  CONTRACT  OF  TKANSPOETATION.  431 

Liability  of  the  Carrier  issuing  tlie  Ticket. 

oflQce  occupied  also  by  the  defendant,  and  acted  under  his  general 
direction,  were  sufflcieut,  prima  facie,  to  charge  the  defendant  as  prin- 
cipal in  these  contracts. 

As  the  detention  which  prevented  the  plaintiff  from  reaching  the 
steamship  Independence  before  she  sailed  occurred  upon  the  isthmus, 
the  defendant  is  chargeable  in  this  action  when  it  is  shown  that  such 
detention  was  a  breach  of  his  contract,  even  though  it  should  be  held 
that  the  plaintiff  contracted  with  other  parties  for  his  passage  upon  the 
Pacific  coast.  But  I  think  there  was  suflflcient  evidence  to  enable  the 
jury  to  find  that  the  defendant  was  the  principal  in  the  contract  which 
Allen  made  with  tlie  plaintiff  for  the  entire  passage.  The  terms  of  the 
card  which  was  given  to  the  plaintiff  when  he  received  his  ticket,  and  of 
the  advertisement  which  was  posted  at  the  door  of  the  office,  which  the 
plaintiff  read  when  he  went  to  secure  his  passage,  looked  to  contracts 
for  the  whole  distance.  The  defendant's  connection  with  the  office  and 
with  Allen  was  sufficient,  prima  facie,  to  charge  him  with  a  knowledge  of 
the  contents  of  these  papers,  and  he  is  to  be  looked  upon  as  their 
author.  Being  known  to  both  parties  to  the  contract  for  passage,  they 
afford  the  means  of  ascertaining  what  that  contract  was,  if  it  were 
otherwise  equivocal.  If  we  add  to  this  evidence  the  fact  that  the 
defendant  was  the  owner  of  a  moiety  of  two  of  the  steamships  which 
ran  on  the  Pacific  side,  and  that  he  was  a  party  to  the  arrangement  by 
which  the  Independence,  owned  substantially  by  the  Schuylers,  was 
employed  in  that  navigation  in  connection  with  the  other  routes,  a  case 
was  made  out  which  was  not  only  suitable  for  the  consideration  of  the 
jury,  but  which  in  our  opinion  fully  warranted  the  verdict  which  they 
gave. 

The  judgment  of  the  Court  of  Common  Pleas  should  be  affirmed. 

All  the  judges  concurring. 

Judgment  affirmed. 


NOTES. 

§  1.  Liability  of  the  Carrier  who  makes  a  Contract  for  Transportation 
over  Lines  beyond  his  own.  —  It  is  a  very  general  custom  in  this  country,  as 
well  as  in  England,  for  carriers  to  enter  into  combinations  by  virtue  of  which  one 
of  them  can  malie  contracts  for  transportation  over  the  lines  of  the  others  and 
issue  tickets  which  will  be  recognized  by  their  servants.  From  this  practice  a 
number  of  interesting  questions  have  arisen,  some  of  them  very  difhcult  of  solu- 
tion.   The  weight  of  authority  is,  that  if  a  carrier  undertakes  to  carry  a  passen- 


4:32  INJURIES    ON    CONTRACTING    LINES. 


Notes. 


ger  and  his  baggage  to  a  certain  destination,  lie  is  responsible  for  his  safety  and 
that  of  his  baggage,  as  carrier,  throughout  the  whole  distance,  whether  the  fran- 
chise and  means  of  conveyance  where  the  injury  or  loss  occurs  be  owned  or 
controlled  by  him  or  by  some  other  carrier.  The  terms  of  his  contract  are  to 
carry  the  passenger  through,  and  the  law  holds  him  to  a  performance  of  it,  not- 
withstanding the  intervention  of  another  carrier  as  a  means  of  effecting  such  a 
performance.!  In  several  well-considered  cases  it  has  been  held  that  the  issuing 
of  a  ticket  over  other  roads  is  in  itself  sufficient  evidence  that  the  carrier  so 
doing  undertakes  to  carry  the  passenger  and  his  baggage  through  to  the  terminus 
indicated  upon  the  ticket.^  A  passage-ticket,  however,  is  not  a  contract,  but 
rather  a  mere  token  to  indicate  that  the  passenger  has  paid  his  fare.^  Therefore, 
where  two  tickets  had  been  issued  to  a  passenger  from  New  York  to  San  Fran- 
cisco via  the  Isthmus  of  Panama,  —  one  from  New  York  to  Chagres,  and  the  other 
from  Panama  to  San  Francisco, — parole  evidence  was  held  to  be  admissible  to 
show  that  there  was  one  entire  contract  for  carriage.* 

In  Tennessee,  it  is  held  that  a  carrier  may  bind  himself  by  a  contract  for  trans- 
portation over  a  route  composed  of  several  lines,  and  make  himself  responsible 
for  safe  carriage  over  the  entire  route ;  but  that  this  will  not  be  considered  to  be 
conclusively  established  from  the  sale  of  the  ticket  alone.* 

It  has  been  frequently  urged  in  those  instances  where  the  carrier  is  a  corpora- 
tion, as  is  usually  the  case  in  this  country  at  the  present  time,  that  a  contract 
for  can'iage  over  a  route  beyond  the  terminus  of  the  carrier's  own  line  is  ultra 
vires.  This  view  has  not,  however,  met  with  much  favor  from  the  courts.  In 
California,  it  was  held  that  railroad  companies  can  make  valid  contracts  for  the 
carriage  of  persons  and  baggage  beyond  their  own  lines,  by  land  or  by  water, 
and  thus  become  liable  for  the  conduct  of  carriers  in  no  wise  under  their  con- 
trol.* Elsewhere  such  contracts  have  been  held  valid  although  the  proposed 
line  of  travel  extends  beyond  the  territorial  limits  of  the  State  within  which  the 
carrier  making  the  contract  is  incorporated.'    In  a  very  well  considered  case 

1  IllinoisetC.R.  Co.  ».Copeland,  24111.  337;  s.  c.  44  L.  J.  (Q.  B.)  18;  31  L.  T.  (N.  S.)  430;  23 

Kent  V.  Midland  R.  Co.,  L.  R.  10  Q.  B.  1;  s.  c.  Week.  Rep.  25;  Najac  v.  Boston  etc.  R.  Co., 

44  L.  J.  (Q.  B.)  18;  31  L.  T.  (N.  s.)  430;  23  7  Allen,  329;  TVilson  r.  Chesapeake  R.  Co.,  21 
Week.  Rep.  25;  Najac  v.  Boston  etc.  R.  Co.,  Gratt.  654;  Great  Western  R.  Co.  v.  Blake,  7 
7  Allen,  329;  Wilson  v.  Chesapeake  etc.  R.  Hurl.  &  N.  986;  s.  c.  8  Jur.  (N.  S.)  1013;  31  L. 
Co.,  21  Gratt.  654;  Ward  v.  Vanderbilt,  4  Abb.  J.  (Exch.)  346;  ante,  p.  403;  Cary  v.  Cleve- 
App.  Dec.  521;  Williams  v.  Vanderbilt,  28  N.  land  etc.  R.  Co.,  29  Barb.  35;  Hart  v.  Rens- 
Y.  217;  s.c.  29  Barb.  491;  Quimby  V.  Vander-  selaer   etc.  R.    Co.,   8   N.  Y.  37;    Weed    v. 

^  bilt,  ante,  p.  423;   Great  Western  R.  Co.  v.  Saratoga  etc.  R.  Co.,  19  Wend.  534;  Candee 

Blake,  7  Hurl.  &  N.  986;  s.  c.  8  Jur.   (N.  s.)  «.  Pennsylvania  R.  Co.,  an<e,  p.  419;  Carter  f. 

1013;  31  L.  J.  (Exch.)  346;  ante,  p.  403;  Hart  Peck,  4  Sneed,  203. 
V.  Rensselaer  etc.  R.  Co.,  8  N.  Y.  37;  Weed'  ^  Quimbyr.  Vanderbilt,  ante,  p.  423. 

w.  Saratoga  etc.  R.  Co.,  19  Wend.  534;   Can-  <  Van  Buskirkr.  Roberts,  31 N.  Y.  661.    See 

dee   V.    Pennsylvania    R.   Co.,   ante,  p.  419;  also  Williams  v.  Vanderbilt,  23  N.  Y.  217;  s. 

Carter  v.  Peck,  4  Sneed,  203;  Croft  v.  Balti-  c.  29  Barb.  491;  Quimby  v.  Vanderbilt,  17  K. 

more  etc.  R.  Co.,  1  McArthur,  492;  Mj-tton  v.  Y.  306,  ante,  p.  423;    Ward  v.  Vanderbilt,  4 

Midland  R.  Co.,  4  Hurl.  &  N.  614 ;  s.  c.  28  L.  J.  Abb.  App.  Dec.  521. 
(Exch.)  385 ;  Burnell  v.  New  York  etc.  R.  Co.,  s  Nashville  etc.  R.  Co.  v.  Sprayberry,  9 

45  N.  Y.  184 ;  Buxton  v.  North-Eastern  U.  Co.,  Heisk.  852 ;  s.  c.  1  Cent.  L.  J.  541. 

L.  R.  3  Q.  B.  549.  e  Wheeler  v.  San  Francisco  etc.  R.  Co.,  31 

s  Illinois   etc.  R.  Oo.  v.  Copeland,  24  111.        Cal.  46. 
.<?37;  Kentv.  Midland  R.  Co.,  L.  R.  lOQ.  B.  1;  ?  cary  v.  Cleveland  etc.  R.  Co.,  29  Barb. 


THE  CONTRACT  OF  TRANSPORTATION.  433 


Through  Ticket  a  Coutract  of  each  Carrier. 

before  the  Court  of  Appeals  of  New  York,  Comstock,  C.  J.,  said  that  the  plea 
of  ultra  vires,  according  to  its  just  meaning,  imports,  not  that  the  corporation 
could  not,  and  did  not  in  fact,  make  the  unauthorized  contract,  but  that  it  ought 
not  to  have  made  it.  Such  a  defence,  therefore,  necessarily  rests  upon  the 
violation  of  trust  or  duty  toward  the  shareholders,  and  is  not  to  be  entertained 
where  its  allowance  will  do  a  greater  wrong  to  Innocent  third  parties.  The 
acquiescence  of  the  shareholders  in  the  abuse  will  prevent  the  interposition  of 
such  a  plea.'    • 

The  fact  that  at  some  point  on  the  passenger's  journey  his  baggage  is  re- 
checked  will  not  operate  as  a  new  contract  for  its  carriage  from  that  point.  It 
must  be  considered  to  have  been  done  in  pursuance  of  the  original  undertaking.'^ 
Nor  can  a  carrier  making  such  a  contract  for  carriage  beyond  his  own  line  free 
himself  from  liability  by  showing  an  agreement  between  the  various  carriers 
whose  lines  constitute  the  route,  that  each  shall  be  responsible  for  losses  and 
injuries  occurring  on  his  part  of  the  line.^ 

Where  the  contract  for  carriage  on  the  route  is  entire,  the  liability  of  the 
carrier  making  it  is  in  nowise  affected  by  the  knowledge  of  the  plaintiff  of  the 
distinct  ownership  of  the  connecting  lines.* 

§  2,  Anotlaer  View — A  Through  Ticket  a  Distinct  Contract  of  each  Carrier. — 
The  foregoing  view,  however,  has  not  universally  prevailed.  There  is  very  re- 
spectable authority  for  the  rule  that  a  through  ticket  over  several  distinct  lines 
of  passenger  transportation,  issued  in  the  form  of  several  tickets  on  one  piece  of 
paper,  and  recognized  by  the  proprietors  of  each  line,  is  to  be  regarded  as  a  dis- 
tinct ticket  for  each  line;  that  the  rights  of  the  passenger  purchasing  such  a 
ticket,  and  the  liabilities  of  the  proprietors  of  the  several  lines  recognizing  its 
validity,  are  the  same  as  if  the  purchase  had  been  made  at  the  ticket-offlce  of  each 
line  respectively.^  "  The  theory  that  the  company  selling  the  ticket  shall  be  held, 
from  this  alone,  to  have  actually  contracted  to  carry  the  passengers  over  roads 
besides  its  own,  and  that  the  owners  of  the  other  roads  are  but  the  agents  of  the 
first  to  carry  out  the  contract,  seems  to  us  to  be  an  arbitrary  assumption,  a 
sort  of  legal  fiction,  and  contrary,  in  some  cases  at  least,  to  the  truth  of  the 
case.  Assuming  that  in  fact  the  different  lines  of  road  are  separate  and  dis- 
tinct, and  owned  and  controlled  by  different  companies  with  different  agents 
and  officers,  and  that  there  is  no  contract  or  privity  between  them  in  regard  to 
carrying  passengers  except  the  arrangement  to  sell  through  tickets,  and  that 
these  facts  appear  in  proof,  shall  the  fact  that  the  first  company,  with  the  author- 
ity of  the  others,  issues  and  sells  the  tickets,  be  held  of  itself  to  establish  exactly 
what  may  be  contrary  to  the  truth,  that  the  other  companies  are  but  the  agents 
and  servants  of  the  first?  "^     A  similar  rule  obtains  in  Connecticut.    The  de- 

35;  Candee  v.  Pennsylvania  R.  Co.,  ante,  p.  ♦  Carter  v.  Peck,  4  Sneed,  203. 

419;  Nashville   etc.  R.  Co.  v.  Sprayijerry,  9  ^  Knight  v.  Portland  etc.  K.  Co.,  56  Me. 

Heisk.  852;  «.  c.  1  Cent.  L.  J.  541.  235;  Furstenheim  v.  Memphis  etc.  R.  Co.,  9 

1  Bissell  V.Michigan  etc.  R.  Co.,  22  N.  Y.  Heisk.  238;  Nashville  etc.  R.  Co.  v.  Spray- 

2.58 ;  Buffett  v.  Troy  etc.  R.  Co.,  40  N.  Y.  168.  berry,  9  Ileisk.  85-2 ;  s.  c.  1  Cent.  L.  J.  541 ; 

*  Candee  v.  Pennsylvania  R.  Co.,  21  Wis.  Hood  v.  New  York  etc.  R.  Co.,  22  Conn.  1. 

5S2,  mite,  p.  419.    See  also  Wilson  v.  Chesa-  "  McFarland,  J.,  in  Nashville  etc.  R.  Co. 

peake  etc.  R.  Co.,  21  Gratt.  054.  v.  Sprayberry,  9  Heisk.  852,  858;  s.  c.  1  Cent. 

'  Wilson  V.  Chesapeake   etc.  R.  Co.,  21  L.  J.  541. 
Gratt.  654. 

28 


434  INJURIES    ON    CONNECTING   LINES. 


Notes. 


fendant,  a  railroad  company,  sold  a  through  ticket  from  New  Haven  to  CoUins- 
ville.  Their  road  extended  no  further  than  Farmington,  which  was  five  miles 
distant  from  Collinsville.  From  Farmington  to  Collinsville,  passengers  were 
carried  by  a  line  of  stages,  in  one  of  which  the  injury  complained  of  happened. 
The  railroad  company  advertised  that  the  stages  connected  with  the  trains  at 
Farmington.  The  whole  fare  from  New  Haven  to  Collinsville  was  generally 
paid  to  the  railroad  company,  and  the  conductor's  through  checks  were  honored 
by  the  stage  line.  The  stage  mauagei's,  too,  sold  tickets  through  from  Collins- 
ville to  New  Haven,  Avhich  were  honored  on  the  defendant's  train  and  taken  up. 
Once  a  mouth,  accounts  were  settled  between  the  two  lines.  The  court  held  this 
insufficient  evidence  of  an  undertaking  on  the  part  of  the  defendant  to  carry  the 
plaintiff  through  to  Collinsville.'  A  case  in  Michigan  tends  to  support  the  fore- 
going, though  not  exactly  in  point.  There,  a  ticket  from  Buffalo  to  Detroit,  in 
two  parts,  —  one  from  Buffalo  to  Stratford  in  Canada,  and  the  other  from  Strat- 
ford to  Detroit, — printed  on  the  same  piece  of  paper,  in  coupon  form,  was  held 
to  form  two  separate  and  distinct  contracts  and  vouchers  for  separate  journeys. 
Therefore  a  delay  at  Stratford  of  two  months,  before  using  the  second  ticket,  was 
held  not  to  affect  the  validity  of  such  ticket.^ 

3.  Liability  of  the  Carrier  on  •whose  Line  the  Injury  or  Loss  occurs. — 
Whatever  may  be  the  correct  rule  concerning  the  liability  of  the  company  selling 
a  through  ticket  over  several  lines  of  carriers,  there  would  seem,  on  principle 
to  be  no  doubt  about  the  responsibility  of  one  of  the  intervening  carriers  for  an 
injury  received  upon  its  line,  caused  by  the  negligence  of  its  servants.'  The 
contract  created  between  a  railroad  company  and  a  purchaser  of  one  of  its 
tickets,  and  the  rights  and  liabilities  of  the  parties  to  such  contract,  are  the 
same,  whether  the  ticket  is  purchased  at  one  of  the  company's  stations,  or  at  a 
station  of  a  contiguous  railroad,  or  of  any  other  authorized  agent  of  the  com- 
pany.* 

With  regard  to  baggage,  there  can  be  no  doubt  that  it  is  necessary  for  the 
plaintiff  to  show  that  it  came  into  the  hands  of  the  particular  carrier  whom  he 
wishes  to  charge  with  a  liability  for  its  loss.^  What  is  sufficient  evidence  to 
show  that  the  baggage  came  into  the  possession  of  the  carrier  must  to  a  very 
great  extent  depend  upon  the  facts  of  each  case.  Proof  that  a  passenger  riding 
on  a  through  ticket  from  New  York  City  to  Junction  City,  Kansas,  by  way  of  the 
Hannibal  and  St.  Joseph  Railroad  and  the  Kansas  Pacific  Railway,  delivered  at 
Kansas  City  to  the  baggage-master  of  the  Kansas  Pacific  Railway  Company, 
who  was  the  agent  of  both  railroad  companies,  certain  checks  of  the  Hannibal 
and  St.  Joseph  Railroad  for  baggage  belonging  to  him,  with  the  understanding 
that  it  should  be  forwarded  from  Kansas  City  to  Junction  City  by  the  Kansas 
Pacific  Railway,  was  considered  some  evidence  to  show  that  the  Kansas  Pacific 

1  Hood  V.  New  York  etc.  R.  Co.,  22  *  Schopman  v.  Boston  etc.  R.  Co.,  9  Gush 
Conn.  1.                                                                          24;  Chicago  etc.  R.  Co.  v.  Fahey,  52  111.  81: 

-  Brooke  v.  Grand  Trunk  R.  Co.,  15  Mich.  Glasco  v.  New  York  etc.  R.  Co.,  36  Barb.  557. 

332.    See  also  Kesaler  v.  New  York  etc.  R.  *  Kessler  v.  New  York  etc.  R.  Co.,  61  N 

Co.,  61  N.  Y.  538 ;  s.  c.  7  Lans.  62.  Y.  538;  s.  c.  7  Lans.  62 ;  McCormick  v.  Hud 

2  Johnson  v.  West  Chester  etc.  R.  Co.,  70  son  River  R.  Co.,  4  E.  D.  Smith,  181;  Chi 
Pa.  St.  357;  Schopman  v.  Boston  etc.  R.  Co.,  cago  etc.  R.  Co.  v.  Fahey,  52  111.  81;  Fairfax 
9  Cush.  24.  V.  New  York  etc.  R.  Co.,  5  Jones  &  Sp.  516. 


THE  CONTRACT  OF  TRANSPORTATION.  435 


Liability  of  on  whose  Line  the  Loss  occurs. 

Eailway  Company  received  the  baggage,  and  therefore  competent  evidence  to  go 
to  the  jury  for  that  purpose,  witli  other  evidence  in  the  case  tending  to  prove 
the  same  fact.^  In  another  case,  the  check  of  the  company,  and  a  delivery  of  a 
part  of  the  baggage  at  the  end  of  their  line,  were  considered  sufficient  to  show  a 
delivery  of  all  the  baggage  into  their  possession.* 

It  is  not  sufficient  to  show  that  the  baggage  came  into  the  carrier's  possession. 
It  must  appear  that  he  received  it  under  a  contract  for  carriage,  made  either 
directly  with  the  passenger  or  through  the  first  carrier  on  the  line,  in  the  shape 
of  a  through  ticket.  Thus,  a  passenger  purchased  a  ticket  at  Montreal  from  the 
agent  of  the  Grand  Trunk  Eailway  Company,  which  on  its  face  purported  to 
carry  him  to  New  York  by  the  connecting  lines  of  the  Grand  Trunk  Railway, 
Plattsburg  and  Montreal  Railroad,  Champlain  Transportation  Company,  and  the 
People's  Line  of  Steamboats.  At  Montreal  his  baggage  was  checked  by  checks 
which  did  not  purport  to  be  checks  of  the  New  York  Central  and  Hudson  River 
Railroad  Company,  the  defendant.  He  came  to  New  York  via  the  People's  Line 
of  Steamboats,  and  not  by  the  defendant's  line  of  railway.  At  Troy,  the  carrier 
who  had  brought  him  from  Whitehall  delivered  his  baggage  to  the  train  baggage- 
master  of  the  defendant,  which  company  brought  his  baggage  to  New  York.  A 
passenger-agent  of  the  Grand  Trunk  Railway  Company  testified  that  his  com- 
pany was  in  the  habit  of  checking  baggage  through  to  New  York  under  some 
arrangement  with  the  connecting  lines;  that  the  baggage  was  checked  by  a 
check  which  indicated  that  it  was  issued  by  neither  of  the  lines  between  New 
York  and  Albany,  which  were  the  defendant's  and  the  People's  Line  of  Steam- 
boats ;  that  it  might  come  by  either  of  these  lines,  and  that  the  passenger  might 
come  by  one  of  these  lines  and  his  baggage  by  the  other.  The  court  held  that 
this  evidence  was  insufficient  to  establish  an  arrangement  between  the  Grand 
Trunk  Railway  Company  and  the  defendant  that  the  latter  should  carry  the 
baggage  of  a  passenger  who  had  not  paid  his  passage  on  the  line  of  the  defend- 
ant ;  that  there  was  no  contract  between  the  defendant  and  the  passenger,  either 
directly  or  through  the  Grand  Trunk  Railway  Company,  for  the  carriage  of  his 
baggage,  and  that  they  were  not  liable  as  carriers  for  its  loss.' 

The  English  rule  is,  that  where  the  contract  is  made  for  through  transportation 
by  one  of  several  connecting  lines  of  carriers,  a  subsequent  carrier  is  not 
responsible  to  the  passenger  for  the  loss  of  his  baggage,  notwithstanding  it 
appeared  that  it  came  into  his  possession,  for  the  reason  that  thei'e  is  but  one 
contract,  and  that  with  the  first  carrier  who  sold  the  through  ticket ;  there  is  no 
privity  between  the  passenger  and  the  subsequent  carrier  in  whose  hands  the 
baggage  was  lost.*  But  it  is  settled  by  very  late  cases  that  a  subsequent  carrier 
is  responsible  for  a  personal  injury  to  a  passenger  upon  its  train  under  such  cir- 
cumstances. It  is  a  case  of  pure  tort.  A  company  having  invited  or  pertnitted 
a  person  to  travel  on  their  train,  they  are  bound  to  make  reasonable  provision 
for  his  safety.* 

1  Kansas  Pacific  E.  Co.  v.  Montellc,  10  tion  to  the  same  effect  in  Kessler  v.  New 
Kan.  119.  York  etc.  It.  Co.,  61  N.  Y.  588;  s.  c.  7  Lane. 

2  McCormick  v.  Hudson  River  E.  Co.,  4  62.  Compare  Candee  v.  Pennsylvania  R.  Co., 
E.  T>.  Smith,  181.  ante,  p.  419. 

•■=  Fairfax  v.  New  York  etc.  R.  Co.,  5  Jones  "  P.erringer  r.  Great  Kastern  K.  Co.,  4  C. 

&  Sp.  .51(5.  P.  Div.  1C3;  Foulkcs  v.  Metropolitan  District 

*  Mytton  V.  Miilland  R.  Co.,  4  Hurl.  &  N.  R.  Co.,  4  C.  P.  Div.  207. 
616:  8.C.28L..J.  (Kxcli.')  38i.    Seeanintima- 


436  INJURIES    ON    CONTRACTING   LINES. 


Notes. 


Of  course,  one  of  a  line  of  carriers  into  whose  hands  the  baggage  of  a  passen- 
ger has  come  may  relieve  himself  of  responsibility  by  showing  that  he  delivered 
it  to  the  next  carrier  over  whose  line  it  was  intended  to  go.  Evidence  of  de- 
fendant's clerk,  that,  in  the  usual  course  of  business  on  the  road,  if  a  trunk  was 
not  delivered  to  the  next  carrier,  it  was  always  brought  back  to  the  defendant's 
office ;  that  he  knew  of  no  such  occurrence  during  the  month  in  which  the  loss 
occurred;  that  the  baggage-agents  on  board  the  defendant's  boats  made  lists  of 
the  through  baggage  delivered  by  them  to  the  connecting  line,  and  that  these  lists 
were  not  preserved,  was  held  insufficient  to  show  a  delivery  to  the  next  carrier. 
Any  presumption  that  could  arise  from  these  facts,  would  be  repelled  by  one 
equally  as  strong  in  favor  of  the  succeeding  carrier.^ 

§  4.  Partnership  of  Carriers.  —  In  some  instances,  the  running  arrangements 
of  carriers  have  amounted  in  effect  to  partnerships,  and  each  has  therefore  been 
held  liable  for  the  torts  as  well  as  contracts  of  the  others  in  the  conduct  of  their 
common  business.  Thus,  A.  and  B.  were  jointly  interested  in  the  profits  of  a 
common  stage-line,  but  by  a  private  agreement  between  themselves  each  under- 
took the  conducting  and  management  of  the  coach  with  his  own  driver  and  horses 
for  specified  distances.  In  an  action  against  one  of  them  for  a  negligent  injury, 
the  court  held  that,  notwithstanding  this  private  agi'eement,  they  were  jointly 
liable  for  the  conduct  of  their  drivers  throughout  the  whole  distance,  and  that 
an  averment  that  the  injury  was  occasioned  by  the  negligence  of  A.,  against 
whom  the  action  was  brought,  was  supported  in  such  case  by  proof  that  the 
driver  was  actually  employed  by  B.  in  conducting  the  coach  for  his  own  stage. ^ 
But  in  order  to  produce  a  common  liability  against  each  and  all  the  carriers  for 
injuries  occurring  anywhere  along  the  line  of  transportation,  the  arrangement 
must  be  really  a  partnership,  with  the  incident  of  community  of  profit  or  loss. 
The  ordinary  running  arrangements  of  connecting  lines,  where  several  compa- 
nies constitute  a  through  line,  and  fare  received  for  through  tickets  is  accounted 
for  by  the  first  company  to  the  otlier  companies  according  to  a  tariff  established 
by  each  company  for  itself  (there  being  no  division  of  profits  or  losses),  is  not 
in  any  sense  a  partnership  involving  joint  liability.^ 

Nor  will  the  appointment  of  a  common  agent  at  each  end  of  the  route,  to 
receive  the  fare  and  give  through  tickets,  constitute  them  partners  as  to  the  pas- 
sengers who  purchase  through  tickets,  so  as  to  render  each  one  liable  for  losses 
occurring  on  any  portion  of  the  line.*  In  case  of  a  loss  or  injury,  the  company 
selling  the  through  ticket  may  be  sued  on  its  contract  for  through  carriage.^ 
Though  this  is  not  undisputed,  as  seen  above.^  And  the  company  upon  whose 
line  the  loss  or  injury  occurs  may  be  sued  for  breach  of  the  contract  implied  in 
the  reception  of  the  passenger  or  baggage  for  carriage.' 

In  New  York,  in  a  case  against  two  carriers  who  formed  a  connecting  line,  to 
enforce  a  joint  liability  for  an  injury  to  a  passenger,  and  where  the  defendants 
admitted  that  their  relations  to  each  other  were  fixed  by  written  contracts,  but 

1  Baltimore  Steam  Packet  Co.  v.  Smith,  23  ^  Croft  v.  Baltimore  etc.  R.  Co.,  1  MoAr- 

Md.  402.  thur,  492. 

«  Waland  v.  Elkins,  1  Stark.  272.    See  also  *  Ellsworth  v.  Tartt,  26  Ala.  733. 

Bost-wick  V.  Champion,  11  Wend.  571  (s.  c.  '  Supra,  %\.                           ^  Supra,  i  2. 

affirmed  in  IS  Wend.  175) ;  Cole  v.  Goodwin,  i  Croft  v.  Baltimore  etc.  R.  Co.,  1  MoAr- 

19  Wend,  251.    See  also  Railroad  Co.  v.  Har-  thur,  492. 
ris,  12  WaU.  65. 


THE  CONTRACT  OF  TRANSPORTATION.  437 


Contracts  limiting  such  Liability. 

refused  to  produce  the  papers,  it  was  held  that  "  every  inference  warranted  by 
the  facts  should  be  indulged  against  them,"  and  a  verdict  against  them  was  sus- 
tained.i 

§  5.  Limitation  of  the  Carrier's  Liability  lor  Losses  and  Injuries  occurring 
off  his  own  Line,  by  Contract  and  Notice.  —  Contracts  limiting  the  carrier's 
liability  and  the  effect  of  "  carrier's  notices  "  are  more  fully  discussed  in  other 
parts  of  this  work,^  and  do  not  properly  belong  to  this  subject  any  further  than 
as  affected  by  the  peculiar  relations  growing  out  of  arrangements  for  through 
transportation.  The  liability  for  losses  and  injuries  on  other  connecting  lines  is 
the  consequence  of  the  carrier's  contract  for  through  carriage,  and  there  is  no 
reason  why  he  may  not  stipulate,  at  the  time  of  selling  the  ticket,  that  each  carrier 
must  be  liable  for  its  own  defaults.'  Where  the  ticket  sold  by  a  railroad  com- 
pany to  a  point  on  a  connecting  line  contained  a  printed  statement  that  in  the 
sale  of  this  ticket  the  company  acted  as  agent  only,  for  roads  beyond  the  ter- 
minus of  their  road,  and  assumed  no  responsibility  therefor,  the  court  held  that 
the  company  was  not  liable  for  a  loss  of  baggage  occurring  upon  the  connecting 
line.*  But  in  Virginia,  the  defendant  must  show  that  such  a  notice  or  stipulation 
in  the  ticket  had  been  brought  home  to  the  plaintiff's  knowledge  before  the  jour- 
ney began, — that  he  read  it  before  the  cars  started. ^  The  burden  of  proof  is 
upon  the  defendant  to  show  that  the  baggage  passed  out  of  his  custody  into  that 
of  the  next  to  whom  it  was  to  be  delivered,  before  the  loss  occurred.^ 

1  Wylde  V.  Northern  R.  Co.,  53  N.  Y.  156.  Gratt.  65-t.    Contra,  Burke  v.  South-Eastem 

2  Ante,  Chap.  XI. ;  post,  Chap.  XVI.  R.  Co.,  5  C.  P.  Div.  1;  s.  c.  28  Week.  Rep.  306; 

3  Quimby  ^;.  Vanderbilt.  an<e,  p.  423.  20  Alb.  L.  J.  498.     Compare  Hendersons;. 

*  Pennsylvania  R.  Co.  v.  Schwarzenberger,       Stevenson,  L.  R.  2  H.  L.  (Sc.  App.)  470. 

45  Pa.  St.  208.  «  Kent  v.  Midland  R.  Co.,  L.  R.  10  Q.  B.  1 ; 

*  Wilson   V.  Chesapeake   etc.  R.  Co.,  21       s.  c.  44  L.  J.  (Q.  B.)  18;  23  Week.  Rep.  25. 


CHAPTEE    XIV. 

STREET-RAILROAD    COMPANIES. 


Lbadeetq  Cases: 


Notes: 


1.  Wilton  V.  Middlesex  Bailroad  Company.  —  Scope  of  employ- 

ment of  driver  —  Gratuitous  passenger. 

2.  Burns  v.  Bellefontaine  Bailroad  Company.  —  Contributory 

negligence  of  passenger  —  Riding  upon  front  platform. 

§  1.  Street-railroad  companies  are  "  carriers  of  passengers." 

2.  Ejecting  person  from  street  car  while  in  motion. 

3.  Duty  of  the  conductor  towards  passengers  alighting. 

4.  Duty  of  passenger  to  notify  conductor  or  driver  of  inten- 

tion to  alight. 
6.  Getting  on  street  car  from  the  side  upon  which  there  is 
another  track. 

6.  Passenger  standing  on  platform  of  car. 

7.  Passenger  getting  on  or  off  car  by  way  of  front  platform. 

8.  Passenger  projecting  arm  from  window. 

9.  When  the  relation  of  carrier  and  passenger  ceases. 

10.  Street  car  obstructing  crossing  —  Right  of  pedestrian  to 
cross  platform. 


1.  scope  of  employment  of  driver  of  street  car  — gratu- 
itous passenger. 

Wilton  v.  Middlesex  Railroad  Company.* 

Supreme  Judicial  Court  of  Massachusetts,  1871. 

Hon.  Reuben  A.  Chapman,  Chief  Justice. 
•'     Horace  Gray,  Jr.,  " 
*♦     John  Wells, 
"     James  D.  Colt,         -  Judges. 
•*     Seth  Ames, 
"     Marcus  Morton, 

Scope  of  Emplo3nnent  of  Driver— Gratuitous  Passenger  — Riding  on  Front  Plat- 
form.—If  a  person  riding  with  due  care  on  the  platform  of  the  horse -car  of  a  street 


*  Reported,  107  Mass.  108. 


(438) 


STREET-RAILROAD    COMPANIES.  439 

Scope  of  Driver's  Employment  —  Gratuitous  Passengers. 

railroad  company,  not  as  a  passenger  for  hire,  but  by  invitation  of  the  driver,  and  with- 
out collusion  with  him  to  defraud  the  corporation,  is  injured  through  his  negligence  in 
driving  the  car,  the  corporation  is  liable. 

Tort  against  a  street-railroad  corporation  for  personal  injuries  alleged 
to  have  been  received  by  the  plaintiff  through  the  negligence  of  the 
driver  of  one  of  the  defendants'  horse-cars. 

At  the  trial  in  this  court  the  plaintiff  offered  to  prove  "  that  on  July 
16,  1868,  at  which  time  she  was  nine  years  of  age,^  she  went  out  about 
seven  o'clock  in  the  evening  to  walk ;  that  she  was  in  company  with 
four  or  five  other  girls  on  the  Chailestown  bridge,  and  near  the  draw, 
and  one  of  the  defendants'  cars  came  along  very  slowly ;  that  there 
were  no  passengers  on  the  platform,  and  the  driver  beckoned  the  girls 
to  get  on,  and  they  accordingly  got  on  the  platform  while  the  car  was 
going  slowly ;  that  the  driver  then  struck  his  horses,  and  they  started 
on  a  fast  trot;  that  the  plaintiff  had  one  foot  on  the  step,  and  by 
reason  of  the  sudden  start,  lost  her  balance ;  that  she  called  to  the 
driver  to  stop,  but  the  car  kept  on,  and  she  fell  so  that  one  of  the 
wheels  passed  over  her  arm,  and  she  was  obliged  to  have  it  amputated  ; 
and  that  she  used  due  care,  and  the  driver  was  careless."  It  was 
admitted  that  the  plaintiff  was  not  a  passenger  for  hire,  and  that  the 
driver  had  no  authority  to  take  the  girls  upon  the  car  and  carry  them, 
unless  such  authority  was  to  be  implied  by  the  fact  of  his  employment 
by  the  defendants  as  a  driver.  Upon  the  plaintiff's  offer  of  proof,  the 
case  was  reserved  by  the  Chief  Justice  for  the  consideration  of  the  full 
court:  if  the  plaintiff  was  entitled  to  recover  thereon,  the  case  to  stand 
for  trial ;  otherwise,  judgment  to  be  given  for  the  defendants. 

E.  H.  Derby,  for  the  plaintiff ;  L.  M.  Child,  for  the  defendants. 

Morton,  J.  — The  plaintiff  was  injured  while  riding  upon  one  of  the 
defendants'  cars.  At  the  trial,  she  offered  to  prove  that  she  was  in  the 
exercise  of  due  care,  and  that  the  driver  of  the  car  was  careless.  For 
the  purposes  of  this  hearing,  therefore,  we  are  to  assume  that  she  was 
injured  by  the  negligence  of  a  servant  of  the  defendants  in  the  course 
of  his  employment,  and  that  her  own  want  of  care  did  not  contribute 
to  the  injury.  It  follows  that  she  can  maintain  this  action ;  unless  we 
sustain  the  position  taken  by  the  defendants,  that  she  was  unlawfully 
upon  the  car,  and  therefore  not  entitled  to  recover. 

The  facts  which  the  plaintiff   offered   to  prove,   bearing   upon  this 

1  [In  a  subsequent  action  by  the  father  of  twelve  years  and  seven  months.  See  Wil- 
this  plaintiff  for  loss  of  services,  she  stated  ton  v.  Middlesex  K.  Co.,  125  Mass.  130, 131.— 
that  her  age  at  the  time  of  the  accident  was        Kd.] 


440  STREET- RAILROAD    COMPANIES. 

Wilton  V.  Middlesex  Eailroad  Company. 

question,  are  as  follows :  The  plaintiff,  a  girl  of  nine  years  of  age,  was 
walking  with  several  other  girls  upon  the  Charlestown  bridge,  about 
seven  o'clock  in  the  evening,  in  July.  One  of  the  defendants'  ears 
came  along  very  slowly,  and  the  driver  beckoned  to  the  girls  to  get  on. 
They  thereupon  got  upon  the  front  platform.  It  was  admitted  thai 
the  plaintiff  was  not  a  passenger  for  hire,  and  that  the  driver  had  no 
authority  to  take  the  girls  upon  the  car  and  carr}'^  them,  unless  such 
authority  is  to  be  implied  by  the  fact  of  his  employment  as  driver. 

Upon  these  facts,  it  is  clear  that  it  would  be  competent  for  the  jury 
to  find  that  the  beckoning  by  the  driver  was  intended  and  understood 
as  an  invitation  to  the  plaintiff  to  get  upon  the  car  and  ride.  In  accept- 
ing this  invitation  and  getting  upon  the  car,  we  think  she  was  not  a 
trespasser,  there  being  no  evidence  of  collusion  between  her  and  the 
driver  to  defraud  the  corporation. 

A  master  is  bound  by  the  acts  of  his  servant  in  the  course  of  his 
employment.  They  are  deemed  to  be  the  acts  of  the  master.  ^  The 
driver  of  a  horse-car  is  an  agent  of  the  corporation,  having  charge,  in 
part,  of  the  car.  If,  in  violation  of  his  instructions,  he  permits  per- 
sons to  ride  without  pay,  he  is  guilty  of  a  breach  of  his  duty  as  a 
servant.  Such  an  act  is  not  one  outside  of  his  duties,  but  is  an  act 
within  the  general  scope  of  his  agency,  for  which  he  is  responsible  to 
his  master.  In  the  case  at  bar,  the  invitation  to  the  plaintiff  to  ride 
was  an  act  within  the  general  scope  of  the  driver's  employment,  and  if 
she  accepted  it  innocently,  she  was  not  a  trespasser.  It  is  immaterial 
that  the  driver  was  acting  contrary  to  his  instructions. 

It  follows  that  the  plaintiff,  being  lawfully  upon  the  car,  though  she 
was  a  passenger  without  hire,  is  entitled  to  recover  if  she  proves  that 
she  was  using  due  care  at  the  time  of  the  injury,  and  that  she  was 
injured  by  the  negligence  of  the  driver.^ 

In  the  present  aspect  of  the  case,  we  are  not  called  upon  to  consider 
to  what  extent  the  defendants  might  be  held  liable  if  it  were  shown  that 
the  plaintiff  was  unlawfully  riding  upon  the  car.^ 

Case  to  stand  for  trial. 

'  Eamsden  v.  Boston  etc.  R.  Co  ,  104  Mass.  by  this  accident,  the  principles  of  the  fore- 

117,  and  cases  cited.  going  case  were  affirmed,  and  judgment  in 

2  Phila.  etc.  R.  Co.  v.  Derby,  14  How.  468,  the  previous  suit  held  to  be  no  bar  to  the 
iSS;  s.c.  ante,  p.  31.  action.    Wilton   v.   Middlesex   R.    Co.,    12.> 

3  [In  a  subsequent  action  by  the  father  of  Mass.  130.— Ed.] 
the  plaintiff  for  loss  of  services  occasioned 


CONTRIBUTORY    NEGLIGENCE    OF    THE    PASSENGER.  441 

Supreme  Court  of  Missouri. 

2.  contributory  negligence  of  passenger  — riding  upon 
pront  platform. 

Burns  v.  Bellefontaine  Railway  Company.* 

Supreme  Court  of  Missouri,  1872. 

Hon.  David  Wagner,     1 
"     Philemon  Bliss,    I  Judges. 
"     "Wash.  Adams,        J 

Fassengrer  riding:  npon  Front  Platform. —The  fact  that  a  street-railway  passenger 
voluntarily  puts  himself  on  the  front  platform  of  the  car,  when  there  is  room  inside, 
does  not  constitute  negligence,  as  a  matter  of  law,  on  the  part  of  such  passenger. 

Appeal  fi'om  St.  Louis  Circuit  Court. 

Krum  &  Patrick,  for  appellant ;  Bakewell  &  Farish,  for  respondent. 

Adajis,  J.,  delivered  the  opinion  of  the  court.  — The  plaintiff  recovered 
a  judgment  for  damages  growing  out  of  injuries  to  plaintiff  in  getting 
off  the  front  part  of  one  of  its  cars.  There  seems  to  have  been  some 
defect  in  the  brakes,  so  that  in  going  down  a  steep  grade  the  cars  could 
not  be  stopped  by  the  use  of  the  brakes,  and  the  plaintiff  was  seriously 
injured  in  trying  to  save  himself  by  getting  off  the  car.  He  was  on  the 
car  as  a  free  passenger,  and  when  he  entered  the  car  he  passed  through 
it  and  stood  with  the  driver,  without  any  objection  from  him,  on  the  front 
platform.  When  the  horses  commenced  running,  the  driver  jumped  off 
to  stop  them,  and  the  plaintiff  took  the  reins  and  endeavored  to  stop 
the  car  by  using  the  brake,  but  to  no  purpose. 

Instructions  were  asked  and  given  in  behalf  of  both  parties,  on  the 
question  of  negligence  and  defect  in  the  car,  and  contributive  negli- 
gence of  plaintiff.  These  instructions,  to  my  mind,  presented  the  case 
fairly  to  the  juiy. 

The  only  material  question  is  whether,  as  a  matter  of  law,  the  fact 
that  the  plaintiff  voluntarily  put  himself  on  the  front  platform,  when 
there  was  room  inside  the  car,  absolved  the  defendant  from  liability. 
This  question  is  presented  by  the  refused  instructions  asked  by  the 
defendant.  The  question  of  negligence  is  for  a  jury  to  decide,  from 
the  facts  and  circumstances  detailed  in  evidence.  Whether  the  front 
platform  was  a  more  dangerous  place  than  inside  the  car,  is  not  a  ques- 
tion of  law,  but  of  fact  for  a  jury.  If  it  be  conceded  that  the  front 
platform  was  more  dangerous,  yet  the  plaintiff  was  there  without  any 

*  Reported,  50  Mo.  139. 


442  STREET-RAILROAD    COMPANIES. 


Notes. 


objection  by  the  defendant  or  its  agent.  The  defendant  had  the  right 
to  carry  passengers  on  the  platform,  and  passengers  might  stand  there 
by  the  consent  of  defendant's  agent.  In  this  case  there  was  no  objec- 
tion at  all  by  defendant's  agent  to  the  plaintiff  standing  on  the  platform. 
In  the  case  of  McKeon  v.  Citizens^  Railway  Company ^^  a  special  act 
of  the  Legislature,  entitled  "An  act  concerning  street  railroads  in  the 
city  of  St.  Louis,"  approved  January  16,  1860,  was  set  up  as  a  defence 
in  the  answer,  and  relied  on  as  exempting  the  railroad  company  from 
liabiUty.  This  act  provided  that  "  said  railroad  companies  shall  not  be 
liable  for  injuries  occasioned  by  the  getting  off  or  on  the  cars  at  the 
front  or  forward  end  of  the  car."  Under  this  act,  if  the  party  com- 
plaining received  the  injury  by  getting  on  or  off  at  the  front  end,  then, 
as  a  matter  of  law,  under  this  act  he  was  prevented  from  recovering. 
This  railway  company  is  not  one  of  the  street  railroads  referred  to  in 
that  act,  and  is  not  protected  by  its  provisions.  The  defendant  does 
not  plead  exemption  by  virtue  of  this  act,  or  any  other  act  of  the  Legis- 
lature, but  looks  to  the  common  law  as  affording  the  same  protection  ; 
and  asks  the  court  to  declare,  as  a  matter  of  law,  that  contributive 
negligence  on  the  part  of  the  plaintiff  is  to  be  presumed  from  his  get- 
ting off  at  the  front  end  of  the  car.  This  is  not  the  law  as  applicable 
to  this  case. 

Let  the  judgment  be  affirmed. 


NOTES. 

§1.  street-Railroad  Companies  are  "Carriers  of  Passengers."  —  Street' 
railroad  companies  are  "carriers  of  passengers,"  within  tlie  meaning  of  a 
statute  which  provides  that  "a  carrier  of  passengers  is  bound  to  extraordinary 
diligence  on  behalf  of  himself  anu  his  agents  to  protect  the  lives  and  persons  of 
his  passengers,"  etc.^  Whether  or  not,  under  the  statute,  they  should  provide 
a  conductor  or  other  servant  in  addition  to  the  driver  on  each  of  their  cars,  to 
protect  their  passengers,  is  a  question  of  fact  for  the  jury.*  By  a  statute  in 
New  York,  owners  of  carriages  running  upon  the  highway  for  the  conveyance  of 
passengers  are  liable  for  all  injuries  done  by  a  driver  while  driving  such  carriage, 
whether  the  act  was  wilful  or  negligent.*  And  by  the  same  act  a  "  carriage,"  as 
there  used,  is  declared  to  include  stage-coaches,  wagons,  carts,  sleighs,  sleds,  and 
every  other  carriage  or  vehicle  used  for  the  transportation  of  persons  and  goods, 

»  42  Mo.  79.  2  Code  Ga.  1873,  §  2067.  Carey,  56  Ind.  396;  Hestonville  etc.  R.  Co.  v. 

8  Holly  t;.  Atlanta  Street  R.  Co.,  7  Report-  Connell,  6  \V.  X.  C.  5U;  s.  c.  S  Cent.  L.  J. 

er,  460.    See  Chicago  City  R.  Co.  v.  Munford,  306,  and    observation   in  5    South.   L.   Rev. 

21  Alb.  L.  J.  214;  Citizens*  Street  R.  Co.  v.  704.         *  Rev.  Stat.  X.  Y.  (2d  ed.)  p.  696,  §  6. 


LIABILITIES    OF    AS    PUBLIC    CARRIERS.  443 


Ejecting  Passengers  —  Passengers  alighting. 

or  either.i  And  while  it  is  ver}^  doubtful  whether  a  street  car  is  within  the 
meaning  of  the  act,  certainly  a  conductor  of  such  a  car  is  not  the  driver  of  a 
carriage  as  contemplated  by  the  statute.* 

§  2.  Ejecting'  Person  from  Street  Car  while  in  Motion.  —  In  removing  a 
person  from  a  street  car  for  non-pajanent  of  fare,  or  because  he  is  so  intoxicated 
as  to  be  offensive  to  passengers,  it  is  a  question  of  fact  for  the  jury,  and  not  of 
law  for  the  court,  whether  it  is  due  care,  and  a  proper  exercise  of  the  right,  to  do 
so  while  the  car  is  in  motion.^  The  speed  of  a  horse-car  may  be  so  far  slackened 
that  a  person  might  at  a  suitable  place  be  ejected  with  safety;  and  it  cannot  be 
said  as  a  matter  of  law  that  it  would  be  wrongful  to  eject  a  person,  who  might 
otherwise  lawfully  be  ejected,  merely  because  the  car  was  in  motion.* 

§  3.  Duty  of  the  Conductor  towards  Passengers  alighting.  —  "Passenger- 
carriers  bind  themselves  to  carry  safely  those  whom  they  take  into  their  coaches, 
as  far  as  human  care  and  foresight  will  go,  —  that  is,  to  the  utmost  care  and  dili- 
gence of  very  cautious  persons;"*  hence,  a  conductor  of  a  street  car  does  not 
come  up  to  the  requirements  of  his  position  who  permits  his  car  to  stop  in 
front  of  a  rapidly  advancing  hook-and-ladder  truck,  and  puts  off  a  passenger 
just  in  time  to  come  in  contact  with  the  vehicle.^  It  is  also  the  duty  of  a  person 
in  charge  of  a  street  car  to  stop  a  reasonable  length  of  time  to  enable  a  passen- 
ger to  safely  alight.'  Therefore,  where  it  was  shown  that  the  plaintiff,  a  lady, 
with  her  child  about  two  years  of  age,  were  passengers  on  the  defendants'  car; 
that  in  alighting  she  placed  one  foot  upon  the  ground,  when  the  conductor 
started  the  car;  that  her  hoop-skirt  caught  on  the  head  of  a  projecting  nail 
upon  the  platform,  and  she  was  thrown  down  and  injured,  it  was  held  that  the 
facts  as  they  thus  appeared  made  out  a  case  of  negligence  upon  the  part  of  the 
company,  and  it  was  not  error  in  the  trial  court  to  refuse  to  dismiss  the  com- 
plaint.^ 

§  4.  Duty  of  Passenger  to  notify  Conductor  or  Driver  of  Intention  to 
Alight.  —  If  a  passenger  on  a  street  car  attempts  to  alight  without  notifying 
either  the  conductor  or  driver,  and  if  they  neither  know  nor  have  the  means  of 
knowing  that  the  passenger  intends  to  get  off,  or  is  in  the  act  of  getting  off,  no 
liability  attaches  to  the  fact  that  the  passenger  was  injured  in  getting  off,  by 
reason  of  the  car  not "^  stopping,  or  suddenly  starting  rapidly  at  the  time  the  pas- 

•  /d.,  §  7.  will  become  annoying  or  offensive  to  other 

=  Isaacs  V.  Third  Avenue  R.  Co.,47N.  T.  passengers   therein,    although    he  has   not 

122.  committed  any  act  of  annoyance  or  offence. 

"  Lovett  i;.  Salem  etc.  R.  Co.,  9  Allen,  557;  Vinton  v.  Middlesex  R.  Co.,  11  Allen,  304, 

Murphy   v.    Union    R.    Co.,    118   Mass.  228;  ante.p.G. 

Healey  v.  City  etc.  R.  Co.,  28  Ohio  St.  23;  <  Murphy  v.  Union  R.  Co.,  118  Mass.  228. 

Sanford  v.  Eighth  Avenue  R.  Co.,  23  N.  Y.  ^  Maverick  v.  Eighth  Avenue  R.  Co.,  36  N. 

343;  Higgins  v.  VVatervliet  Turnpike  Co.,  46  Y.  378,  381. 

N.  Y.  23.    The    conductor  of   a   street  car  «  Ibid. 

may  exclude  or  expel  therefrom  a  person  '  Crissey  v.  Hestonville  etc.  R.  Co.,  75  Pa. 

who,  by  reason  of  intoxiciUion  or  otherwise,  St.  83. 

is  in  such  a  condition  as  to  render  it  rea-  8  Poulin  v.  Rroadway  etc.  R.  Co.,  61  N.  Y. 

sonably  certain  that  by  act  or  speech  he  621  ;8.c.  (aflirming)  2  Jones  &  Sp.  297. 


444  STREET-RAILROAD    COMPANIES. 


Notes. 


senger  was  making  Ms  exit.^  However,  a  notice  to  the  driver  by  the  passenger 
of  his  desire  to  alight  is  sufficient ;  and  tlie  fact  that  the  passenger  did  not  notify 
the  conductor  will  not  in  itself  charge  him  with  contributory  negligence,  where 
the  passenger  was  injured  in  getting  off  a  car  by  reason  of  its  not  stopping.- 
But  a  negligent  or  wilful  refusal  of  a  conductor  or  driver  to  stop  the  car,  aftei- 
being  requested,  will  not  of  itself  justify  a  passenger  in  getting  off  the  front 
platform  of  a  car  while  it  is  in  motion.^ 

There  is  no  rule  of  law  which  requires  that  a  passenger  on  a  street  car,  after 
he  has  notified  those  in  charge  of  it  of  his  desire  to  alight,  and  there  are  indica- 
tions that  the  car  is  about  to  stop,  should  remain  in  his  seat  until  the  car 
has  fully  stopped.  If,  after  notifying  the  conductor  or  driver,  he  sees  that  his> 
notice  has  been  understood,  he  may  prepare  to  leave ;  and  unless  he  is  negligent 
in  alighting,  he  may  recover  for  the  injuries  he  receives  by  reason  of  being 
thrown  off  the  car  by  its  suddenly  starting  forward  without  notice  to  him.* 

§  5.  Getting  on  Street  Car  from  the  Side  upon  which  there  is  another 
Track.  —  It  has  been  held  to  be  negligence,  as  a  matter  of  law,  for  a  person  to 
attempt  to  get  upon  a  street  car  from  the  space  between  two  tracks,  on  seeing 
another  car  approaching,  some  two  hundred  feet  distant,  upon  the  parallel  ti'ack, 
by  which  such  person  was  knocked  down  and  injured.^  In  another  very  similar 
case,  it  was  left  to  the  jury  to  determine  whether,  under  the  circumstances,  there 
was  such  negligence  on  the  part  of  the  plaintiff  as  to  preclude  his  recovery.^ 

§  6.  Passenger  standing  on  Platform  of  Car.  —  It  is  the  duty  of  a  street- 
railroad  company  to  cai-ry  passengers  with  safety;  and  if  injury  to  a  passenger 
results  from  the  carelessness  of  its  servants  in  the  management  of  its  car,  or 
from  a  defective  brake,  or  from  an  overloaded  car,  or  from  all  combined,  the 
company  will  be  liable.'  The  fact  that  a  passenger  stands  upon  the  front  plat- 
form of  a  car,  although  there  may  be  room  inside,  does  not  per  se  constitute 
contributory  negligence,  where  he  is  injured  by  the  fault  of  the  company's  ser- 
vants ;  ®  certainly  not  if  the  car  is  so  crowded  that  he  cannot  get  inside,  and 
his  fare  is  accepted  by  the  conductor  while  he  is  upon  the  platform.'*  But  it 
has  been  held  that  standing  upon  the  steps  of  the  frout  platform  of  a  street  car 
(it  appearing  that  the  person  would  have  escaped  injury  if  he  had  been  inside 
the  car)  when  an  accident  takes  place,  in  the  absence  of  explanation,  is  sufficient 
to  make  out  a,  prima  facie  case  of  negligence  against  the  person  injured  thereby^ 
and  the  burden  is  upon  him  to  rebut  the  presumption.    But  if  while  riding  in 

1  Nichols  V.  Middlesex  R.  Co.,  106  Mass.  6  Dale  v.  Brooklyn  City  etc.  B.  Co.,  1  Hun, 
463;  Cram  v.  Metropolitan  R.  Co.,  112  Mass.  146.  See  also  Milk  v.  Middlesex  R.  Co.,  99 
38.  Mass.  167. 

2  Mnlhado  v.  Brooklyn  CityR.  Co., SON.  Y  ?  Chicago  City  R.  Co.  v.  Young,  63  lU.  3'2S. 
370.  s  Burns  v.  Bellefontaine  R.  Co.,  50  Mo.  139, 

3  Cram  v.  Metropolitan  R.  Co.,  112  Mass.  ante,  p.  441;  Maguire  v.  Middlesex  R.  Co., 
38.  115  Mass.  239. 

*  Nichols  V.  Sixth  Avenue  R.  Co.,  38  N.  Y.  o  Augusta  etc.  R.  Co.  v.  Reuz,  55  Ga.  126; 

131 ;  Chicago  City  R.  Co.  v.  Munford,  21  Alb.  Hadencamp   v.  Second    Avenue   R.    Co.,  1 

L- J- 214.  Sweeny,  49j;  Meesel  v.  Lynn  etc.  R.  Co.,  8 

5  Halpin  v.  Third  Avenue  R.  Co.,  8  Jones  Allen,  234;  Iluelseukamp  v.  Citizens'  R.  Co., 

&  Sp.  175.  37  Mo.  537 ;  «.  c.  34  Mo.  45. 


LIABILITIES    OF    AS    TUliLlC    CAKKlEliS.  445 


Passenger  getting  on  and  off  by  Front  Platform. 

this  position  lie  is  called  upon  for  his  fare,  and  it  is  received  by  the  conductor,  It 
will  authorize  the  jury  to  And  that  an  implied  assurance  was  given  to  him  that  it 
was  a  suitable  place  to  ride,  and  therefore  that  he  is  not  guilty  of  contributory 
negligence.^  And  although  it  is  not  negligence  pei-  se  to  stand  upon  the  platform 
of  a  car,  yet,  where  a  passenger  stood  upon  the  very  edge  of  the  platform  with- 
out holding  on  to  any  thing,  and  with  knowledge  of  the  bad  condition  of  the 
street  and  track,  caused  by  the  accumulation  of  snow  and  ice,  and  maintained 
that  position  after  an  opportunity  had  been  given  him  to  exchange  it  for  a  place 
of  comparative  safety,  until  thrown  off  by  a  jerk  of  the  car,  occasioned  by  the 
bad  condition  of  the  street  and  track,  it  was  held  that  he  was  guilty  of  negligence 
which  contributed  to  the  injury,  and  it  was  no  excuse  that  the  persons  in  charge 
of  the  car  knew  that  he  was  in  an  unsafe  position  and  did  not  drive  him  there- 
from, when  the  danger  was  equally  well  known  to  him.^  The  fact  that  a  passen- 
ger on  a  street  car  was  standing  on  the  rear  platform,  with  his  hand  on  the  rail- 
ing, when  his  hand  was  injured  by  the  defendant's  dray  as  it  passed  the  rear  of 
the  street  car,  is  not,  as  a  matter  of  law,  such  negligence  as  contributes  to  the 
injury.' 

§  7.  Passenger  getting  on  or  off  Car  by  way  of  the  Front  Platform.  — 
It  cannot,  as  a  matter  of  law,  be  regarded  as  negligence  for  a  passenger  to  alight 
from  the  front  end  of  a  street  car  while  it  is  at  rest,  after  he  has  requested  the 
driver  to  hold  his  brake  for  that  purpose  and  has  received  assurance  that  he  will 
do  so.*  It  is  usually  a  question  of  fact  for  the  jury  whether  those  in  charge  of  a 
car  are  negligent  in  allowing  a  passenger  to  stand  upon,  or  get  on  or  off,  the 
front  platform,  and  in  not  sooner  stopping  the  car.^  But  to  allow  very  j'oung 
children  to  get  on,  or  stand  upon,  the  front  platform  while  the  car  is  in  motion,  is 
negligence  upon  the  part  of  the  company's  employees,  as  a  matter  of  law.^ 

It  has  been  held  in  Maryland  that  a  regulation  of  a  street-railroad  company 
prohibiting  passengers  from  getting  on  or  off  at  the  front  end  of  a  street  car 
is  a  reasonable  rule  and  that  knowingly  to  violate  it,  without  the  compulsion  of 
some  existing  necessity  is  conclusive  evidence  of  negligence  of  the  passenger ; 
so  that,  should  he  sustain  an  injury  in  consequence,  he  will  have  no  right  of 
action  against  the  company,  although  the  driver  of  the  car  may  also  have  been 
concurrently  negligent ;  that  the  circumstance  that  a  driver  or  conductor  may 
have  given  permission  thus  to  use  the  front  platform  is  immaterial,  for  the  com- 
psCny  cannot  be  bound  by  the  act  of  their  servant  in  attempting  to  dispense  with 
a  known  and  positive  regulation.' 

»  Clark  V.  Eighth  Avenue  R.  Co.,  36  N.  Y.  45  Conn.  284;  Phila.  etc.  R.  Co.  *.  Hassard, 

135  (affii-ming  s.  c.  32  Barb.  657).  75  Pa.  St.  367;  East  Saginaw  City  K.  Co.  v. 

»  Ward  V.  Central  etc.  R.  Co.,  42  How.  Pr.  Bohn,  27  Mich.  503;  Wilton  v.  Middlesex  U. 

289.  Co.,  107  Mass.  108;  s.  c.  125  Mass.  130,  ante, 

3  Seigel  V.  Eisen,  41  Cal.  109.  p.  438;  Day  v.  Brooklyn  etc.  R.  Co.,  12  Hun. 

*  Mulhado  V.  Brooklyn  City  R.  Co.,  30  N.  435.  See  Smith  v.  Hestonville  etc.  R.  Co. 
Y.  370.  (Sup.  Ct.  Pa.  1880),  10  Cent.  L.  J.  272,  and 

'  Crissey  v.  Hestonville  etc.  R.  Co.,  75  Pa.  note. 
St.  83;  Maher  v.  Central  Park  etc.  R.  Co.,  67  '  Baltimore  City  etc.  R.  Co.  v.  Wilkinson, 

N.  Y.  52  ;  (affirming  s.  c.  7  Jones  &  Sp.  1.55).  30  Md.  224.    But  see  Wilton  v.  Middlesex  R. 

•  Pittsburgh  etc.  R.  Co.  v.  Caldwell,  74  Pa.  Co.,  an<e,  p.  438;  Dunn  v.  Grand  Trunk  R.  Co., 
St.  421;  Brennan  v.  Fair  Haven  etc.  R.  Co.,  ante,  p.  328. 


446  STREET-RAILKOAD    COMPANIES. 


Notes. 


Where  an  act  in  relation  to  street  railroads  provided  that  "  said  railroad  com- 
panies shall  not  be  liable  for  injuries  occasioned  by  the  getting  off  or  on  the  cars 
at  the  front  or  forward  end  of  the  car,"  *  it  was  held  that  the  effect  of  this  stat- 
ute was  such  that  where  an  injury  to  a  passenger  was  occasioned  by  his  getting 
off  a  car  at  the  front  platform,  it  must  be  presumed,  as  a  matter  of  law,  that  the 
negligence  of  the  passenger  himself  contributed  to  produce  the  accident  and 
injury;  yet  if  the  injury  were  occasioned  to  a  passenger  who  had  got  off  the 
front  platform  and  had  fallen  in  front  of  the  wheel,  by  the  driver's  negligence  in 
either  intentionally  starting  the  horses  or  in  carelessly  allowing  them  to  stai't 
forward  while  the  passenger  was  in  that  position,  it  would  be  an  independent 
act  of  negligence,  for  which  the  company  might  be  liable.^ 

§  8.  Passenger  projecting  Arm  from  Window.  —  While  there  is  a  difference 
of  opinion  as  to  whether  a  passenger  upon  a  steam-railway  train  is  guilty  of 
negligence  as  a  matter  of  law  in  ridmg  \vith  his  arm  projecting  from  the  car 
window,^  this  has  never  been  asserted  of  a  passenger  upon  a  street  railway  in  a 
similar  position.  It  is  evident  that  there  is  not  the  same  reason  for  the  rule. 
"The  cars  of  a  horse-railway  have  not  the  same  right  to  the  use  of  the  track 
over  which  they  travel,  do  not  run  at  the  same  speed,  are  not  attended  with  the 
same  danger,  and  are  not  so  difficult  to  check  quickly  and  suddenly,  as  those  of 
an  ordinary  railroad  corporation."  *  Therefore  each  case  must  stand  upon  its 
o^vn  facts ;  and  what  is  or  is  not  ordinary  prudence  as  to  the  position  which 
one  assumes  when  sitting  at  an  open  window  of  a  street  car  running  upon  rails, 
and  drawn  by  horses  under  the  charge  of  a  driver,  is  not  to  be  determined  by 
any  arbitrary  rule.* 

§9.  When  the  Relation  of  Carrier  and  Passenger  ceases.  —  The  general 
principle  that  the  duty  of  a  passenger-carrier  towards  its  passengers  is  entirely 
distinct  from  its  duty  towards  persons  who  are  not,"  or  who  have  ceased  to  be, 
passengers,'  applies  equally  to  street  cars  as  it  does  to  other  conveyances.  After 
a  passenger  has  got  off  from  a  street  car,  and  is  walking  upon  the  highway,  the 
relation  of  carrier  and  passenger  has  ceased,  and  towards  such  person  the  rail- 
way company  is  under  the  obligation  of  using  only  such  care  as  is  to  be  exercised 
between  two  persons  lawfully  using  the  highway;  therefore,  where  a  person 
was  knocked  down  and  injured  in  the  changing  of  the  horses  from  one  end  of 
the  car  to  the  other,  at  the  terminus  of  the  line, — she  having  got  off  from  the 
forward  end  of  the  car  in  violation  of  the  company's  regulations, — this  act, 
which,  had  she  been  considered  a  passenger  at  the  time  of  the  accident,  might 
have  been  conclusive  evidence  of  negligence,  upon  the  theory  that  she  was 
not  a  passenger  was  considered  as  not  even  proximately  contributing  to  the 
accident.^ 


1  Mo.  Sess.  Acts  1859-60,  p.  518,  §  9.  •  Brand  v.  Troy  etc.  R.  Co.,  8  Barb.  368. 

5  McKeon  v.  Citizens'  R.  Co.,  42  Mo.  79.  '  Imhoff  v.  Chicago  etc.  R.  Co.,  22  Wis. 

8  Ante,  p.  257.  681. 

*  Lynam  v.  Union  R.  Co.,  114  Mass.  83,  88.  s  piatt  v.  Forty-second  Street  etc.  R.  Co., 

*  Miller  v.  St.  Louis  R.  Co.,  5  Mo.  App.  471.  2  Hun,  124 ;  s.  c.  4  Thomp.  &  C.  406. 


LIABILITIES    OF    AS    PUBLIC    CARRIERS.  447 

Injuries  to  Pedestrians. 

§  10.  Street  Car  obstructing  Crossing  —  Right  of  Pedestrian  to  cross 
Platform.  —  Where  a  street  car  is  stopped  so  as  to  obstruct  tlie  passage  of  a 
pedestrian  desiring  to  cross  the  street,  it  is  not  a  trespass  or  wrongful  act  on 
his  part  to  step  upon  and  pass  over  the  platform  of  the  car  in  order  to  avoid 
the  obstruction,  and  if  the  driver  of  the  car  should  seize  and  throve  off  a  person 
passing  over  the  platform  of  a  car  thus  obstructing  the  crossing,  the  railroad 
company  would  be  liable  in  an  action  for  damages  for  injuries  sustained  thereby.^ 

1  Shea  V.  Sixth  Avenue  E.  Co.,  62  N.  Y.180. 


CHAPTEE    XY. 

CARRIERS   OF   PASSENGERS   BY   WATER. 


Leading  Cases:  l.  Benett  v.  Peninsular  and  Oriental  Steamboat  Company.  — 
Duty  of  carriers  of  passengers  beyond  the  seas  to  receive 
and  carry. 
2.  Chamberlain  V.  Chandler. — Jurisdiction  of  courts  of  admi- 
ralty over  torts  committed  upon  passengers  —  Conduct 
of  tlie  master  amounting  to  a  tort. 

Notes:     §  1.  Botli  owner  and  master  are  common  carriers,  although 
passengers  are  carried  to  a  foreign  country. 

2.  Who  is  a  passenger. 

3.  When  master  of  vessel  may  refuse  to  receive  passengers. 
i.  When  a  passenger  may  be  expelled  from  a  vessel. 

5.  Duty  of  the  carrier  to  convey  passenger  to  the  port  to 

which  he  has  contracted  to  carry  him. 

6.  Payment  of  passage-money  —  Recovery  back. 

7.  Construction  of  contracts  of   carriage  —  Jurisdiction   of 

admiralty  courts. 

8.  Duty  of  the  carrier  as  to  accommodation  and  ti'eatment  of 

passengers. 

9.  Authority  of  master  of  vessel  over  passenger. 

10.  Right  of  passengers  to  salvage. 

11.  Baggage  of  passengers  by  water. 

12.  Injuries  to  passengers  getting  on  or  off  a  vessel. 

13.  Rights  of  passengers  inter  se  to  berths  on  steamboats. 

14.  Duty  of  the  carrier  as  affected  by  quarantine. 

15.  Limitation  of  liability  —  English  Merchants'  Shipping  Act. 

16.  Parties  to  action  in  case  of  injury  to  passengers  from  col- 

lision of  vessels. 

17.  U.  S.  statutes  affecting  carriers  of  passengers  by  water. 


1.  duty  of  carriers  of  passengers   beyond  the   seas  to 
receive  and  carry. 

Benett  v.  Peninsular  and  Oriental   Steamboat  Company.* 

English  Court  of  Common  Pleas,  1848. 

Obligation  to  receive  and  carry.  —  It  is  the  duty  of  owners  and  masters  of  vessels  who 
hold  themselves  out  as  carriers  of  passengers  to  receive  all  proper  persons  who  choose 

•  Reported,  6  0.  B.  775.    See  also  s.  c.  16  C.  B.  23.    The  case  was  heard  before  WUde,  0.  J., 
Ooltman,  Maule,  Cress  well,  and  Williams,  JJ. 

(448) 


CARRIERS    OF    PASSENGERS    BY    WATER.  449 

Obligation  to  Eeceive  and  Carry. 

to  apply,  and  are  ready  and  willing  to  pay  for  transportation.    This  obligation  attaches 
,  equally  to  carriers  of  passengers  by  water  from  one  place  to  another  in  the  same  coun- 

try, and  carriers  of  passengers  beyond  the  seas. 

Uase  against  the  Peninsular  and  Oriental  Steamboat  Company  for 
refusing  to  carr^^  the  plaintiff,  as  a  passenger  for  hire,  from  South- 
ampton to  Gibraltar. 

The  declaration  stated  that  on,  etc.,  the  defendants  were  possessed  of 
a  certain  steam-vessel  called  the  Montrose,  then  lying  at  Southampton 
and  about  to  sail  for  a  place  beyond  the  seas,  —  to  wit,  Gibraltar^  in 
Spain,  —  for  the  carriage  of  passengers  from  Southampton  to  Gibraltar ; 
that  the  defendants  were  then  common  carriers  of  passengers  for  hire, 
in  and  by  the  said  steam-vessel,  from  Southampton  to  Gibraltar ;  that 
the  plaintiff  was  then  desirous  of  becoming  a  passenger  in  and  on  board 
of  the  said  steam-vessel  from  Southampton  to  Gibraltar,  and  then,  at 
a  reasonable  and  proper  time  in  that  behalf,  tendered  himself  to  the 
defendants  at  Southampton  aforesaid,  to  be  carried  by  them  as  such 
passenger  in  and  on  board  the  said  steam-vessel  from  Southampton  to 
Gibraltar,  and  then  requested  the  defendants  to  receive  him  as  such 
passenger  in  and  on  board  the  said  steam-vessel,  to  be  carried,  and  to 
carry  him,  from  Southampton  to  Gibraltar ;  that  the  plaintiff  was  then 
ready  and  willing  to  pay  to  the  defendants  all  reasonable  passage- 
money,  hire,  and  reward  for  being  carried  by  them  as  such  passenger 
from  Southampton  to  Gibraltar,  of  which  the  defendants  then  hail 
notice ;  and  that,  although  the  defendants  then  had  sufficient  room  and 
accommodation  in  and  on  board  the  said  steam-vessel  to  receive  the 
plaintiff  in  and  on  board  the  same  as  such  passenger,  and  to  carry  him 
as  such  passenger  from  Southampton  to  Gibraltar,  yet  the  defendants 
disregarded  their  duty  in  that  behalf,  and  did  not  nor  would  receive 
the  plaintiff  as  such  passenger  in  and  on  board  the  said  steam-vessel, 
or  carry  the  plaintiff  therein  from  Southampton  to  Gibraltar,  but  wholly 
neglected  and  refused  so  to  do;  and  then  caused  the  said  steam- vessel 
to  sail,  and  the  same  did  then  sail,  from  Southampton  to  Gibraltar  with- 
out the  plaintiff,  etc. 

Third  plea,  that  the  defendants  were  not  common  carriers  of  pas- 
sengers for  hire,  moclo  et  forma,  etc. 

The  cause  was  tried  before  Wilde,  C.  J.,  at  the  Sittings  in  London 
after  Michaelmas  Term,  1847.  It  appeared  that  the  defendants  were 
the  proprietors  of  certain  steam-vessels,  one  of  which  was  advertised 
bj^  circulars  issued  b}'  the  defendants  to  sail  every  ten  days  from  South- 
ampton for  Corunna,  Vigo,  Oporto,  Lisbon,  Cadiz,  and  Gibraltar,  — 
the  circulars  giving  the  times  of  starling,  and  the  terms  upon  which 

29 


450  CARRIERS    OF    PASSENGERS    BY    WATER. 

Benett  v.  Peuinsular  and  Oriental  Steamboat  Company. 

passengers  were  to  be  convej^ed  to  those  places  respectively,  and  goods 
also,  if  there  was  room  for  them  ;  that  the  plaintiff  went  to  South- 
ampton on  the  27th  of  February,  1847,  for  the  purpose  of  taking  his 
jmssage  by  one  of  the  defendants'  vessels,  called  the  Montrose ;  but 
that,  in  consequence  of  some  communication  which  had  been  made  to 
the  defendants  by  the  Portuguese  consul,  their  agent  refused  to  allow 
him  to  take  a  passage,  although  it  was  admitted  that  there  was  plenty 
of  room. 

On  the  part  of  the  defendants,  it  was  submitted  that  the  third  issue 
ought  to  be  found  for  them,  for  that  the  common-law  liability  of  car- 
riers did  not  extend  to  carriers  of  passengers  or  to  extra-territorial 
carriers ;  and  that  the  company's  circulai-s  imported  a  limited  and  not 
a  general  undertaking  to  carry  passengers. 

The  Lord  Chief  Justice  left  it  to  the  jury  to  say  whether  or  not  the 
evidence  satisfied  them  that  the  defendants  carried  on  the  business  of 
common  carriers  for  hire. 

The  jury  found  in  the  affirmative,  and  a  verdict  was  accordingly 
entered  for  the  plaintiff  on  that  issue,  with  leave  to  the  defendants  to 
move  to  enter  the  verdict  thereon  for  them  if  the  court  should  be  of 
opinion  that  this  was  not  the  fair  legal  inference  from  the  evidence. 

The  Attorney -General  now  moved  accordingly. — Carriers  of  passen- 
gers are  not  common  carriers  for  hire  within  the  custom  of  the  realm^ 
so  as  to  be  liable  to  the  performance  of  the  duty  laid  in  this  declaration. 
And  if  they  are,  the  custom  does  not  bind  extra-territorial  carriers. 
This  is  not  an  action  for  refusing  to  perform  a  contract,  express  or 
implied  ;  but  it  is  an  action  that  is  founded  upon  a  common-law  duty. 
A  carrier  of  goods  is  an  insurer,  with  this  single  qualification :  that  he 
is  not  responsible  for  the  act  of  God  or  of  the  king's  enemies.  In  an 
action  against  a  common  carrier,  negligence  need  not  be  alleged.  But, 
in  all  the  books,  the  liability  of  the  carrier  is  restricted  to  the  carriage 
of  goods.  The  law  upon  this  subject  is  correctly  and  conveniently 
brought  together  in  Story  on  Bailments.  In  §  495,  the  learned  author 
says:  "A  common  carrier  has  been  defined  to  be  one  who  undertakes, 
for  hire  or  reward,  to  transport  the  goods  of  such  as  choose  to  employ 
him,  from  place  to  place."  §  496.  "  Common  carriers  are  generally  of 
two  descriptions:  1.  Carriers  by  land;  2.  Carriers  by  water.  Of  the 
former  description  are  the  proprietors  of  stage-wagons  and  stage- 
coaches which  ply  between  different  places,  and  carry  goods  for  hire. 
So  truckmen,  teamsters,  cartmen,  and  porters,  who  undertake  to  cany 
goods  for  hire,  as  a  common  employment,  from  one  part  of  a  town  or 
city  to  another.     Of  the  latter  description  are  the  owners  and  masters 


OBLIGATION  TO  RECEIVE  AND  CARRY.  451 

English  Court  of  Common  Pleas. 

of  ships  and  steamboats  engaged  in  the  transportation  of  goods  for 
persons  generally,  for  hire.  So  are  lightermen,  hoymen,  barge-owners, 
ferrymen,  canal-boatmen,  and  others  employed  in  like  manner."  §  498. 
"  But  the  proprietors  of  stage-coaches  whose  employment  is  solely  to 
carry  passengers  (such  as  hackney-coachmen)  are  not  deemed  common 
carriers.  They  are  not  responsible  for  mere  accidents  happening  to  the 
persons  of  passengers,  but  only  for  want  of  that  due  care  which  is  required 
of  bailees  for  hire  ordinarily.^  But  if  they  are  accustomed  to  carry  the 
baggage  of  passengers,  although  they  receive  no  specific  compensation 
therefor,  and  receive  simply  their  fare  for  the  passage  of  the  travellers,  yet 
they  are  responsible  (even  if  not  as  common  carriers)  at  least  for  due  and 
reasonable  care  of  such  baggage  ;  since  the  passengers  are  thus  induced 
to  travel  in  the  coach,  and  the  custody  of  the  baggage  may  be  properly 
deemed,  as  in  the  case  of  an  innkeeper,  an  accessory  to  the  principal 
conti'act."  §  499.  "And,  in  modern  times,  it  seems  not  quite  settled, 
whether,  as  to  passengers'  baggage,  without  any  distinct  compensation, 
the  coach  proprietors  are  not  liable  as  common  carriers.  The  language 
of  those  cases  which  are  supposed  to  intimate  a  liability  of  this  sort  may 
perhaps  be  explicable  upon  the  ground  of  the  ordinary  responsibility  for 
ordinary  care.  In  a  late  case,^  Chief  Justice  Best  seems  to  have  placed 
the  responsibility  of  coach  proprietors  carrying  passengers  and  their  bag- 
gage, upon  the  ordinary  footing  of  common  carriers  as  to  their  baggage. 
And  Mr.  BelP  deduces  this  as  the  true  modern  doctrine  on  the  subject." 
§  500.  "  But  if  the  proprietors  of  a  stage-coach  for  passengers  carry 
goods  also  for  hire,  they  are,  in  respect  to  such  goods,  to  be  deemed 
common  carriers.  The  like  reasoning  applies  to  packet-ships  and  steam- 
boats which  ply  between  different  ports,  and  are  accustomed  to  carry 
merchandise  as  well  as  passengers."  §  501.  "When  it  is  said  that  the 
owners  and  masters  of  ships  are  deemed  common  carriers,  it  is  to  be  under- 
stood of  such  ships  as  are  employed  as  general  ships,  or  for  the  transporta- 
tion of  merchandise  for  persons  in  general ;  such  as  vessels  emploj^ed  in 
the  coasting  trade,  or  in  a  foreign  trade,  for  all  persons  offering  goods  for 
the  port  of  destination.  But  if  the  owner  of  a  ship  employs  it  on  his  own 
account  generally,  or  if  he  lets  the  tonnage,  with  a  small  exception,  to 
a  single  person,  and  then,  for  the  accommodation  of  a  particular  indi- 
vidual, he  takes  goods  on  board  for  freight  (not  receiving  tliem  for  per- 
sons in  general),  he  will  not  be  deemed  a  common  carrier,  but  a  mere 
private  carrier,;  for  he  does  not  hold  himself  out  as  engaged  in  a  public 

1  Citing   Aston    v.    Heaven,   2  Esp.    533;  Pul.  417.    And   eee   Ross   v.   Hill,   2   C.  B. 

Christie   v.    Griggs,    2  Camp.  79;  Dudley  v.  877. 

S'liitli,   1    Camp.   167;    Wliite    v.   Boulton,  2  Brooke  «.  Pickwick,  4  Bing.  218;  12  J.  B. 

lV.:k3,  81;  Robinson  r.  Dunmore,  2  Bos.  &  Moo.  447.  ^  1  BeH's  Coram.  467,468,  475. . 


452  CARRIERS    OF    PASSENGERS    BY    WATER. 

Benett  v.  Peninsular  and  Oriental  Steamboat  Company. 

business  or  emplo^inent. "  The  learned  author  draws  a  pointed  distinc- 
tion between  the  liability  of  a  carrier  as  to  goods  and  as  to  passengers 
and  their  baggage.  If  the  party  holds  himself  out  as  a  carrier  of  goods 
as  well  as  of  passengers,  he  is  subject  to  all  the  liabilities  that  attacli 
upon  a  carrier  by  the  custom,  but  it  is  otherwise  if  he  holds  himsel  f 
out  as  a  carrier  of  passengers  only.  Here  it  was  proved  that  the  carry- 
ing of  goods  was  not  the  primary  object  and  business  of  the  company, 
but  that  they  only  professed  to  carry  goods  if  they  had  room  for  them. 
Dr.  Story  thus  comments  on  the  case  of  Dale  v.  Hall:  ^  "In  the  case  of 
Dale  V.  Hall,  it  would  seem  to  have  been  held  that  a  person  who  under- 
takes to  carr}'  goods  by  water  is  liable  as  a  common  carrier,  notwith- 
standing the  declaration  does  not  allege  him  to  be  a  common  carrier, 
but  is  founded  upon  a  special  contract.  That  case  was  in  fact  against 
a  common  ho}- man  for  the  negligent  loss  of  goods  ;  and  the  court  was  of 
opinion  that,  as  he  was  a  common  hoy  man,  evidence  to  show  that  he 
was  in  fact  guilty  of  no  negligence  was  improperly  admitted  in  his 
defence.  It  is  difficult  to  perceive  how,  upon  the  actual  frame  of  the 
declaration,  any  general  responsibility  as  a  common  carrier  could  be 
inferred.  And  the  case,  if  it  proceeded  upon  the  notion  that  ever}'  car- 
rier by  water  for  hire  was  to  be  deemed  a  common  carrier,  and  respon- 
sible as  such,  is  inconsistent  with  later  decisions. "^  In  §  508,  speaking 
of  the  duties  and  obligations  of  carriers,  Dr.  Story  says:  "One  of  the 
duties  of  a  common  carrier  is  to  receive  and  carry  all  goods  offered  for 
transportation,  upon  receiving  a  suitable  hire.  This  is  the  result  of  his 
public  employment  as  a  carrier ;  and,  by  the  custom  of  the  realm,  if  he 
will  not  carry  goods  for  a  reasonable  compensation  upon  a  tender  of  it, 
and  a  refusal  of  the  goods,  he  will  be  liable  to  an  action,  unless  there  is 
a  reasonable  ground  for  the  refusal."  In  Aston  v.  Heaven,^  which  was 
an  action  against  the  defendants  as  proprietors  of  a  stage-coach,  for 
negligent  driving,  in  consequence  of  which  the  coach  was  overturned 
and  the  plaintiff  injui'ed,  Eyre,  C.  J.,  said:  "This  action  is  founded 
entirely  on  negligence.  It  has  been  said  by  the  counsel  for  the  plaintiff, 
that,  wherever  a  case  happens,  even  where  there  has  been  no  negligence, 
he  would  take  the  opinion  of  the  court  whether  defendants  circumstanced 
as  the  present — that  is,  coach-owners — should  be  liable  in  all  cases  except 
where  the  injur}'  happens  from  the  act  of  God  or  of  the  king's  enemies. 
I  am  of  opinion  the  cases  of  the  loss  of  goods  by  carriers  and  the  present 
are  totally  unlike.  When  that  case  does  occur,  he  will  be  told  that  car- 
riers of  goods  are  liable  by  the  custom,  to  guard  against  frauds  they 

1  1  Wils.  281.  more,  2 Bos.  &  Pul.  417;  S.<itterlee  v.  Groat,  1 

'  §  504.    Citing  Hutton  v.  Osbom,  1  Selw.       M'end.  272,  and    Boucher  v.  Lawson,   Cas. 
N.  P.  (10th  ed.)  :i'j;)  note  b;  Robinson  v.  Dun-        temp.  Ilurdw.  1;'4.  ^  i  Esp.  .5:3. 


OBLIGATION  TO  RECEIVE  AND  CARRY.  453 

English  Court  of  Common  Pleas. 

might  be  tempted  to  commit,  by  taking  goods  intrusted  to  them  to  carry 
and  then  pretending  they  had  lost  or  been  robbed  of  them,  and  because 
they  can  protect  themselves  ;  but  there  is  no  such  rule  in  the  case  of  the 
carriage  of  the  persons.  This  action  stands  on  the  ground  of  negligence 
alone."  In  a  similar  case, — Christie  v.  Griggs,^  —  the  rule  was  laid  down 
by  Lord  Mansfield  in  the  same  way.  "  There  was,"  he  said,  "  a  dif- 
ference between  a  contract  to  carry  goods  and  a  contract  to  carry  pas- 
sengers. For  the  goods,  the  carrier  was  answerable  at  all  events.  But 
he  did  not  warrant  the  safet}'  of  the  passengers.  His  undertaking  as  to 
them  went  no  further  than  this,  that  as  far  as  human  care  and  foresight 
could  go,  he  would  provide  for  their  safe  conveyance.  Therefore,  if  the 
breaking  down  of  a  coach  was  purely  accidental,  the  plaintiff  had  no 
remedy  for  the  misfortune  he  had  encountered."  So,  in  Crofts  v. 
Waterhoiise,^  Park,  J.,  said:  "A  carrier  of  goods  is  liable  in  all  events 
except  the  act  of  God  or  the  king's  enemies  ;  a  carrier  of  passengers  is 
only  liable  fov  npgligence.'^  Sharpe  v.  Orey^  is  not  inconsistent  with 
these  cases ;  it  decides,  in  substance,  that  a  coach-proprietor  is  bound 
to  use  all  ordinary  care  and  diligence  to  provide  a  safe  vehicle.  [Cress- 
well,  J.  —  It  goes  a  little  further  than  that;  it  lays  it  down  that  he  is 
bound  at  all  events  to  provide  a  sound  coach.  Wilde,  C.  J.,  referred 
to  Bremner  v.  Williams.'^']  The  only  authority  that  bears  against  the 
defendants  is  an  American  case  cited  by  Dr.  Story,  —  JencTcs  v.  Cole- 
man.^ There  was  an  action  against  the  proprietor  of  a  steamboat  run- 
ning from  New  York  to  Providence,  in  the  United  States,  for  refusing 
to  receive  the  plaintiff  on  board  as  a  passenger.  The  plaintiff  was  the 
known  agent  of  the  Tremont  line  of  stage-coaches.  The  proprietors  of 
the  steamboats  President  and  Benjamin  Franklin  had,  as  the  plaintiff 
knew,  entered  into  a  contract  with  another  line,  called  the  Citizens' 
Stage-Coach  Company,  to  carry  passengers  between  Boston  and  Provi- 
dence in  connection  with  the  boats.  The  plaintiff  had  been  in  the  habit 
of  coming  on  board  the  steamboats  at  Providence  and  Newport  for  the 
purpose  of  soliciting  passengers  for  the  Tremont  line,  which  the  proprie- 
tors of  the  President  and  Benjamin  Franklin  had  prohibited.  It  was 
held  that  if  the  jury  should  be  of  opinion  that  the  above  contract  was 
reasonable  and  bond  fide^  and  not  entered  into  for  the  purpose  of  an 
oppressive  monopoly,  and  that  the  exclusion  of  the  plaintiff  was  a  rea- 
sonable regulation  in  order  to  carry  this  contract  into  effect,  the  proprie- 
tors of  the  steamboats  would  be  justified  in  refusing  to  take  the  plaintiff 

1  2  Camp.  79 ;  s.  c  ante,  p.  181.  *  1  Car.  &  P.  414. 

2  3  Bing.  :519;  11  J.  B.  Moo.  133.  *  2  Sumn.  221;  s.  c.  ante,  p.  11. 

3  9  BiiiK.  457;  2  Moo.  &  S.  620. 


454  CARRIERS    OF    PASSENGERS    BY   WATER. 

Benett  v.  Peninsular  and  Oriental  Steamboat  Company. 

on  board.     In  giving  judgment  in  that  case,  Dr.  Story  seems  to  assume, 
that,  but  for  the  excuse,  the  action  would  have  lain. 

The  second  point  is  one  of  great  importance.  Assuming  that  the 
defendants  would  be  subject  to  the  liabilities  of  common  carriers  if  the 
whole  of  the  alleged  duty  was  to  be  performed  within  the  realm,  are 
extra-territorial  carriers  subject  to  the  same  liabilities,  and  bound  by 
the  same  custom?  Is  the  liability  to  enure  throughout  the  voyage,  or 
is  it  to  vary  according  to  the  law  of  the  port  from  which  the  vessel 
starts?  Suppose  a  party  requires  to  be  conveyed  from  Corunna  to  Cadiz 
only,  would  the  custom  attach  there?  If  not,  where  does  the  common- 
law  liability  end? 

A  rule  nisi  having  been  granted,  — 

Petersdorff  (with  whom  was  Byles^  Serjt.  )  showed  cause. — The 
points  urged  on  the  part  of  the  defendants,  on  moving  for  the  rule, 
were,  first,  that  the  defendants,  as  carriers  of  passengers  only,  are 
not  subject  to  the  liabilities  that  attach  by  the  custom  of  the  realm 
to  common  .carriers  of  goods;  secondly,  that  the  rules  which  govern 
common  carriers  do  not  apply  to  the  owners  of  vessels  going  beyond 
the  limits  of  her  majesty's  dominions.  If  the  argument  upon  either 
point  be  correct,  this  declaration  discloses  no  cause  of  action ;  and, 
consequently,  the  motion  should  have  been  to  arrest  the  judgment ; 
for  the  court  will  not  award  a  new  trial  where,  from  the  insufficiency 
of  the  declaration,  a  new  trial  must  be  unavailing.  [Wilde,  C.  J.  — 
Whether  the  declaration  is  good  or  not,  the  plaintiff  was  entitled  to 
have  the  issues  disposed  of  at  nisi  prius,  with  a  view  to  costs.]  The 
declaration  does  not  allege  that  the  defendants  were  common  carriers 
according  to  the  custom  of  the  realm,  but  merely  that  they  were  com- 
mon carriers  of  passengers  for  hire ;  and  it  alleges  a  breach  of  duty 
in  refusing  to  receive  the  plaintiff  as  a  passenger  on  board  their  vessel, 
although  there  was  suflicient  room.  And  the  third  plea  is,  that  the 
defendants  were  not  common  carriers  of  passengers  for  hire,  modo  et 
forma.  [Maule,  J.  —  The  third  issue  merely  presents  a  question  of  fact : 
whether  or  not  the  defendants  were  common  carriers  of  passengers  for 
hire^  from  Southampton  to  Gibraltar.  It  is  enough  for  you  to  show  that 
the  question  of  law  does  not  arise  upon  the  third  plea.]  The  Lord 
Chief  Justice,  at  the  trial,  construed  the  term  "common  carriers,"  in 
the  declaration  and  the  third  plea,  in  the  same  sense  as  the  parties  them- 
selves had  given  to  it. 

The  court  called  upon  — 

Ogle  (with  whom  was  the  Attorney- General)  to  support  the  rule. 
There  is  no  consideration  alleged  on  the  face  of  the  declaration :  it  is 


OBLIGATION  TO  RECEIVE  AND  CARRY. 


455 


English  Court  of  Common  Pleas. 


founded  upon  the  assumed  common  law  liability  of  the  defendants  as 
common  carriers.  It  was  necessary  to  state  the  particular  situation 
and  character  of  the  defendants,  in  order  to  show  how  the  duty  for  the 
breach  of  which  the  action  is  brought  arose ;  ^  but  it  was  not  necessary 
to  allege  that  the  defendants  were  common  carriers  according  to  the 
custom.  In  Chitty  on  Pleading,  vol.  1,  p.  238,  it  is  said  that,  "in  an 
action  against  a  common  carrier,  or  innkeeper,  for  the  loss  of  goods, 
etc.,  — which  is  a  liability  founded  on  the  common  law,  or  custom  of  the 
realm,  —  it  is  not  only  unnecessary,  but  improper,  to  recite  such  cus- 
tom ;  because  it  tends  to  confound  the  distinction  between  special 
customs,  which  ought  to  be  pleaded,  and  the  general  customs  of  the 
realm,  of  which  the  courts  are  bound  to  take  notice  without  pleading." 
The  third  plea,  therefore,  very  properly,  denies  that  the  defendants 
were  common  carriers  according  to  the  custom,  which  is  impliedly  stated 
in  the  declaration ;  for,  without  that  implication,  the  declaration  would 
clearly  be  bad,  as  showing  no  consideration  for  the  defendants'  dutj'. 
[Maule,  J. — The  allegation  of  duty  is  idle. 2]  The  words  "common 
carriers  "  have  a  known  technical  meaning.  [Maule,  J.  — The  declara- 
tion states,  not  that  the  defendants  were  common  carriers  according  to 
the  custom  of  England,  or  from  one  place  to  another  within  the  realm, 
but  that  they  were  common  carriers  of  passengers  for  hire  from  South- 
ampton to  Gibraltar,  in  Spain.  The  third  plea  denies  that  the  defend- 
ants were  common  carriers  of  passengers  for  hire  as  alleged  in  the 
declaration ;  issue  is  taken  upon  that,  and  the  jury  have  found  that 
they  v:ere  such  common  carriers.] 

Wilde,  C.  J. — It  seems  to  me  that  there  is  no  ground  for  setting 
aside  the  verdict  found  for  the  plaintiff  on  the  third  issue,  and  entering 
a  verdict  on  that  issue  for  the  defendants.  The  declaration  alleges  that 
the  defendants  were  common  carriers  of  passengers  for  hire  in  and  by 
a  certain  steam-vessel  from  Southampton  to  Gibraltar,  in  Spain,  import- 
ing, therefore,  a  course  of  trading  between  a  port  within  the  realm  and 
a  port  out  of  the  realm.  The  declaration  then  goes  on  to  allege  that 
the  plaintiff  was  desirous  of  becoming  a  passenger  on  board  the  said 
vessel  from  Southampton  to  Gibraltar,  and  tendered  himself  to  the 
defendants  to  be  so  carried,  and  requested  them  to  receive  him  as  a 
passenger,  and  that  he  was  ready  and  willing  to  pay  all  reasonable 
passage-money  and  reward  for  being  so  carried ;  but  that  the  defendants, 
although  there  was  sufficient  room  and  accommodation  for  the  purpose. 

»  Ohitty'8  PI.  (7th  ed.,  by  Greening)  399.  «  Brown  v.  Mallett,  5  C.  B.  599. 


456  CARRIERS    OF    PASSENGERS    BY    WATER. 

Benett  v.  Peninsular  and  Oriental  Steamboat  Company. 

in  disregard  of  their  duty  in  that  behalf,  refused  to  receive  or  carry 
him.  To  tliis  the  defendants  pleaded,  amongst  other  pleas,  that  they 
were  not  common  carriers  of  passengers  for  hire,  in  manner  and  foiTQ 
as  in  the  declaration  alleged.  The  evidence  offered  on  the  part  of  the 
plaintiff  to  sustain  the  issue  was,  that  the  defendants  had  issued  bills 
and  circulars  holding  themselves  out  as  ready  to  carry  goods  and  pas- 
sengers for  hire  from  Southampton  to  Gibraltar  and  certain  intermediate 
places ;  that  their  practice  had  been  in  correspondence  with  their  circu- 
lar ;  and  that  they  refused  to  receive  the  plaintiff  on  board,  although 
there  was  plenty  of  room.  I  left  it  to  the  jury  to  say  what  was  the 
correct  inference  to  be  drawn  from  that  evidence,  —  whether  they  were 
satisfied  that  the  defendants  carried  on  the  business  of  common  carriers 
of  passengers  for  hire  from  Southampton  to  Gibraltar.  The  jury  found 
that  the  defendants  did  carry  on  the  business  of  common  carriers  of 
passengers  in  the  manner  alleged  in  the  declaration.  The  question  is, 
whether  I  was  right  in  so  leaving  it  to  the  jury.  It  is  to  be  observed 
that  the  declaration  alleges  the  defendants  to  be  common  carriers  from 
a  place  that  is  within,  to  a  place  that  is  without,  the  realm.  The  question 
is,  can  a  man  be  a  "common  carrier"  of  passengers  from  a  place  that 
is  within  the  realm  to  a  place  out  of  it?  Mr.  Justice  Story,  in  the  very 
able  treatise  that  has  been  referred  to,  defines  a  common  carrier  to  be 
a  person  who  does  just  what  the  defendants  in  this  case  are  proved  to 
have  done.  He  says  (§  495):  "A  common  carrier  has  been  defined  to 
be  one  who  undertakes,  for  hire  or  reward,  to  transport  the  goods  of 
such  as  choose  to  employ  him,  from  place  to  place."  It  is  said  that 
the  evidence  here  did  not  support  the  third  issue,  because  the  term 
"common  carrier"  imports  one  who  carries  from  and  to  places  within 
the  realm  only.  But,  if  we  so  construe  it,  we  make  the  declaration  bad 
and  inconsistent ;  whereas,  if  we  read  it  as  meaning  "  common  carriers  " 
according  to  the  definition  given  by  Dr.  Story,  viz.,  as  persons  holding 
themselves  out  as  undertaking,  for  hire  or  reward,  to  transport  the  goods 
of  such  as  choose  to  employ  them,  from  place  to  place,  we  shall  be 
giving  the  allegation  a  sense  that  will  make  it  consistent  with  the  breach. 
I  see  no  reason  for  holding  that  "common  carriers"  must  of  neces- 
sity mean  persons  employed  to  carry  within  the  realm,  and  according 
to  the  custom.  It  seems  to  me  that  this  declaration,  and  the  issue 
taken  upon  it  by  the  third  plea,  may  be  understood  in  a  sense  that  will 
make  the  whole  consistent,  that  the  question  was  properly  left  to  the 
jury,  and  that  the  verdict  is  right. 

CoLTMAN,  J. — Mr.  Ogle's   argument  is   founded   entirely  upon   the 


OBLIGATION    TO    RECEIVE    AND    CARRY.  457 

English  Court  of  Common  Pleas. 

ordinary  form  of  declaration  in  actions  against  inland  carriers.  The 
declaration  usually  states  that  the  defendant  was  a  common  carrier  of 
goods  and  chattels  for  hire,  from  a  certain  place  to  a  certain  other 
place, — though,  perhaps,  it  is  not  in  all  cases  necessary  to  give  the 
precise  termini^  —  and  it  goes  on  to  state  the  delivery  of  the  goods  to 
the  defendant,  to  be  safely  and  securely  carried  and  conveyed  by  him  to 
their  destination.  The  places  from  and  to  which  the  goods  are  to  be 
carried  must  x>rimd  facie  be  understood  to  be  in  England  ;  and,  as  the 
defendant  is  alleged  to  be  a  common  carrier  for  hire  from  one  place  in 
England  to  another  place  also  in  England,  his  liability  arises  from  the 
custom  of  England,  which  need  not  be  alleged.  This  declaration,  how- 
ever, when  it  calls  the  defendants  "  common  carriers,"  does  not  mean 
to  allege  that  they  are  carriers  within  the  realm,  and  according  to  the 
custom  of  the  realm,  but  that  they  are  persons  who  were  in  the  habit  of 
conveying  passengers  for  hire  from  England  to  certain  places  beyond 
the  seas.  Whether  any  particular  duty  results  from  that,  is  altogether 
another  matter.  I  think  the  question  was  correctly  left  to  the  jury  by 
the  Lord  Chief  Justice,  and  that  the  issue  was  properly  found  for  the 
plaintiff. 

Maule,  J.  —  I  also  think  there  is  no  ground  for  disturbing  the  ver- 
dict on  the  third  issue.  The  question  of  fact  raised  by  that  issue  was, 
whether  or  not  the  defendants  were  common  carriers  of  passengers  for 
hire  from  Southampton  to  Giliraltar,  in  Spain.  I  think  that  issue  was 
properly  found  for  the  plaintiff.  It  is  true  that  ambiguous  expres- 
sions in  a  declaration,  that  are  pleaded  over  to,  are  to  be  understood  in 
such  a  sense  as  will  sustain  the  declaration.  So,  if  it  be  necessary  to 
sustain  a  declaration  that  a  place  that  is  mentioned  be  in  England,  the 
declaration  being  pleaded  over  to,  it  will  be  assumed  to  be  so.  Thus, 
in  Kearney  v.  King,^  where  the  declaration  stated  that  a  bill  was  drawn 
and  accepted  at  Dublin,  without  alleging  it  to  be  at  Dublin  in  Ireland, 
the  court  would  not  exclude  the  possibility  of  its  having  l)een  drawn 
and  accepted  at  a  place  called  Dublin  in  England.  So,  if  a  declaration 
were  to  allege  that  the  defendant  was  a  common  carrier  of  goods  or 
passengers  for  hire  from  London  to  Vienna,  it  would  be  assumed  that 
both  these  places  were  in  England.  Here,  however,  the  declaration 
states  that  the  defendants  were  possessed  of  a  certain  steam-vessel 
called  the  Montrose,  lying  at  Southampton,  and  bound  to,  and  about  to 
sail  for,  a  place  beyond  the  seas,  to  wit,  Gibraltar,  in  Spain,  for  the 

1  2  Barn.  &  Aid.  301 ;  1  Chit.  Rep.  28. 


458  CARRIERS    OF    PASSENGERS    BY    WATER. 

Benett  v.  Peninsular  and  Oi'iental  Steamboat  Company. 

carriage  of  passengers  from  Southampton  aforesaid  to  Gibraltar  afore- 
said ;  and  tliat  the  defendants  were  common  carriers  of  passengers  for 
hire,  in  and  by  the  said  steam-vessel,  from  Southampton  aforesaid  to 
Gibraltar  aforesaid.  The  view  suggested  by  Mr.  Ogle  is,  that  the  alle- 
gation that  the  defendants  are  common  carriers  of  passengers  for  hire 
between  Southampton  and  Gibraltar,  in  Spain,  means  that  they  are 
carriers  who  somehow  or  other  are  subject  to  the  same  liabilities  and 
duties  as  carriers  within  the  realm  are  subject  to.  To  that  proposition 
I  cannot  assent.  As  soon  as  you  establish  the  termini,  the  only  ques- 
tion raised  by  the  third  plea  is,  whether  the  defendants  actually  did 
those  things  which  Dr.  Story  defines  as  the  duties  of  a  common  carrier. 
It  was  suggested  by  the  Attorney- General,  on  moving  for  the  rule,  that 
the  liabilities  of  common  carriers  of  goods  differ  from  those  incurred  by 
common  carriers  of  passengers.  But,  whatever  the  law  may  be,  I  think 
the  allegation  here  can  only  mean  that  the  defendants  were  common 
carriers  of  passengers  in  the  sense  in  which  Dr.  Story  speaks  of  con? 
mon  carriers  of  goods.  Common  carriers  would  not  cease  to  be  com- 
mon carriers  although  their  common-law  liabilities  should  be  abrogated 
by  act  of  Parliament.  I  think  the  question  was  properly  left  to  the 
jury,  and  properly  found  by  them. 

V.  Williams,  J.  —  I  am  entirely  of  the  same  opinion.  The  issue 
arises  on  a  traverse  which  threw  upon  the  plaintiff  the  necessity  of 
proving  that  the  defendants  were  common  carriers  of  passengers  for 
hire  from  Southampton  to  a  certain  place  beyond  the  seas,  to-wit,  Gib- 
raltar, in  Spain.  I  think  the  plaintiff  is  entitled  to  retain  the  verdict 
found  for  him  upon  that  issue.  If  the  defendants  are  not  liable  to  an 
action  of  this  sort,  they  might  have  moved  in  arrest  of  judgment,  or 
have  brought  a  writ  of  error. 

Byles,  Serjt.,  observed  that  it  was  agreed  at  the  trial  that  the  decision 
of  the  court  should  place  the  parties  in  the  same  position  as  if  the  Lord 
Chief  Justice  had  directed  the  jury  in  conformity  therewith,  and  a  bill 
of  exceptions  had  been  thereupon  tendered  and  sealed. 

Wilde,  C.  J. — That  certainly  was  so;  though  I  very  much  doubt 
both  the  propriety  and  the  convenience  of  the  arrangement. 

Maule,  J. — Then,  this  is,  in  effect,  a  sort  of  extra-judicial  writ  of 
error,  — from  the  judge  who  presided  at  the  trial,  to  the  court, —  before 
proceeding  to  the  Exchequer  Chamber. 

Hule  discharged.^ 

'  No  point  arose  in  respect  of  Gibraltar  being  a  possession  of  the  British  crown.  It  was 
stated  in  the  declaration  to  be  in  Spain. 


JURISDICTION    OVER    MARINE    TORTS.  459 


Circuit  Court  of  the  United  States,  First  Circuit. 


2.  jurisdiction  of  courts  of  admiraxty  over  torts  com- 
mitted upon  passengers  — what  conduct  of  the  master 
amounts  to  a  tort. 

Chamberlain  v.  Chandler.* 

Circuit  Court  of  the  United  States  for  the  First  Circuit,  1823. 

Hon.  Joseph  Story,  Associate  Justice  of  the  Supreme  Court. 
"     John  Davis,  District  Judge. 

1.  Jurisdiction  of  Courts  of  Admiralty.  —  Courts  of  admiralty  have  jurisdiction  of  per- 

sonal torts  and  wrongs  committed  on  a  passenger  on  ttie  high  seas  by  the  master  of  the 
ship. 

2.  Authority  of  Master  of  Vessel. —The  authority  of  a  master  at  sea  is  necessarily 

summary,  and  often  absolute.  For  the  time  being,  he  exercises  the  rights  of  sovereign 
control;  and  obedience  to  his  will,  and  even  to  his  caprices,  becomes  almost  indis- 
pensable. 

3.  "What  Conduct  of  the  Master  will  amount  to  a  Tort.  —  It  is  not  a  correct  proposi- 

tion of  law,  that,  if  the  person  of  a  passenger  is  untouched,  if  acts  of  oppression  and 
insult  on  the  part  of  the  master  towards  a  passenger  do  not  amount  to  an  assault  and 
battery,  they  are  not  to  be  redressed.  Passengers  can  claim  something  more,  under 
the  contract  for  passage,  than  mere  shiproom  and  transportation,  viz.,  respectful 
treatment,  protection  from  general  obscenity,  immodesty  of  approach,  wanton  disre- 
gard of  feelings,  threats  of  personal  injury,  restraint  within  unreasonable  limits,  and 
may  demand  suitable  food  and  the  common  means  of  relief  in  cases  of  sea-sickness 
and  ill-health. 

This  was  a  libel  in  admiralty,  brought  by  the  libellants  (being  hus- 
band, wife,  and  children),  who  were  passengers  on  board  of  the  ship  Pearl, 
on  a  voyage  from  the  island  of  Woakoo  to  Boston,  against  the  defend- 
ant, who  was  master  of  the  ship  for  the  voyage,  for  damage  for  asserted 
ill-treatment  and  injuries  to  them  during  the  voyage.  The  defendant 
put  in,  by  way  of  answer,  an  allegation  denying  the  ill-treatment  and 
injuries.  The  cause  came  on  to  be  heard  upon  the  evidence,  and  was 
argued  by  — 

Hubbard  and  Webster,  for  the  libellants,  and  by  T.  Fuller,  for  the 
defendant. 

Story,  J.  —  No  exception  has  been  interposed  against  tlie  jurisdic- 
tion of  the  court  in  this  case.  I  wish,  however,  that  it  should  be  under- 
stood that  the  point  has  not  passed  sub  silentio,  but  that  it  has  attracted 
the  consideration  of  the  court.  The  contract  itself  is  a  maritime  con- 
tract, for  the  conveyance  of  passengers  on  the  high  seas,  and  the  wrongs 
complained  of  are  gross  ill-treatment  and  misconduct  in  the  course  of 
the  voyage,  while  on  the  high  seas,  by  the  master,  in  breach  of  the  stip- 

•  Reported,  3  Mason,  242. 


460  CARRIERS    OF    PASSENGERS    BY   WATER. 

Chamberlain  v.  Chandler. 

ulations  necessarily  implied  in  his  contract,  of  the  duties  of  his  office, 
and  of  the  rights  of  the  libellauts  under  the  maritime  law.  The  juris- 
diction of  courts  of  admiralty  over  torts  committed  in  personam  on  the 
high  seas  has  never,  to  my  knowledge,  been  doubted  or  denied  by  the 
courts  of  common  law,  and  has  been  often  recognized  by  adjudications 
in  the  admiralty.^  In  4  Institutes^  134,  the  common-law  judges  admitted, 
in  the  fullest  manner,  that,  "  of  contracts,  pleas,  and  quereles  made  upon 
the  seas,  etc.,  the  admiral  hath,  and  ought  to  have,  jurisdiction;  and 
no  precedent  can  be  shown  that  any  prohibition  hath  been  granted  for 
any  contract,  plea,  or  querele  concerning  any  marine  cause,  made  or 
done  upon  the  sea."  As  to  the  competency  of  the  admiralty  to  award 
damages  for  personal  wrongs  in  cases  of  captures,  as  prize,  Le  Caux  v. 
Eden^  is  directly  in  point;  and  further,  that  in  such  cases  (i.e.,  of 
prize)  it  is  exclusive. ^  No  distinction  has  been  recognized  between 
torts  to  property  and  torts  to  persons  on  the  high  seas,  and  in  Le  Caux 
V.  Eden  the  court  seemed  to  think  that  none  existed.  In  the  case  of 
Lindo  V.  Rodney,'^  the  court  held  that  the  operation  of  the  statutes  of 
Richard  was  only  "  to  confine  the  admiralty  by  the  locality  of  the  thing 
done,  which  is  the  cause  of  action;  it  must  be  done  on  the  high  seas." 
Indeed,  a  tort  on  the  high  seas  is  strictly*  within  the  words  of  those 
statutes,  a  plea  or  querele  arising  on  the  high  seas.  And  it  cannot 
make  any  difference,  in  point  of  principle,  whether  it  be  a  direct  or  con- 
sequential wrong,  whether  it  be  an  assault  and  imprisonment,  or  a 
denial  of  all  comforts  and  necessaries,  and  a  course  of  brutal  insult  and 
maltreatment,  whereby  the  health  of  the  party  is  materiall}'  injured,  or 
he  is  subjected  to  gross  ignominy  and  mental  suffering. 

The  admiralty  has  been  accustomed  to  deal  with  subjects  of  this 
nature  from  early  times.  In  the  case  of  The  Ruckers,^si  civil  suit  for 
damages  was  brought  in  the  admiralty  for  an  assault  by  the  master  of 
a  ship  on  a  passenger  on  the  high  seas,  and  on  full  consideration  the 
jurisdiction  was  sustained.  On  that  occasion  the  court  directed  the 
records  to  be  searched,  and  the  registrar  reported  "  that  man}'  instances 
were  to  be  found  of  proceedings  on  damages  on  behalf  of  persons 
described  as  part  of  the  ship's  company,  against  officers  or  others 
belonging  to  the  same  ship,  and  several  against  persons  belonging  to 
other  ships ;  and  there  were  other  instances  of  proceedings  on  the  part 
of  A.  B.  against  C.  D.,  without  any  specification  of  the  capacity  in 

1  2  Brown'B  Adm.  108;  3  Bla.  Comm.  106.  Brown's  Adm.  IDS,  110;  3  Bla.  Comm.  106; 

»  1  Doug.  572.  Zouch's  Adm.  Juiisdic.  104. 
8  Sir  Leoline  Jenkins's  "Works,  p.  774,  Vol.  <  1  Doug.  591,  note. 

II.    See  also  Caton  v.  Burton,  Cowp.  330;  2  *  4  jjob.  73. 


JURISDICTION    OVER   IMARINE    TORTS.  461 

Circuit  Court  of  the  United  States,  First  Circuit. 

which  the  persons  stood."  Sir  William  Scott  said :  "  Looking  to  the 
locality  of  the  injury,  that  it  was  done  on  the  high  seas,  it  seems  to  be 
fit  matter  for  redress  in  this  court."  Dr.  Godolphin  (a  very  learned 
admiralty  judge),  in  enumerating  the  various  subjects  of  admiralty 
jurisdiction,  includes  "all  affairs  relating  to  mariners,  whether  ship 
officers  or  common  mariners,  their  rights  and  privileges  respectively ; 
their  office  and  duty ;  their  wages ;  their  offences,  whether  by  wilful- 
ness, casualty,  ignorance,  negligence,  or  insufficiency,  with  their  pun- 
ishments." 1 

My  judgment  accordingly  is,  that  the  libel  is  well  founded  in  point  of 
jurisdiction;  and  that,  if  the  injuries  complained  of  are  established  in 
evidence,  the  plaintiffs  are  entitled  to  redress,  constituting,  in  the  tech- 
nical phrase  of  the  admiralty,  "a  cause  of  damage." 

In  respect  to  a  case  like  that  before  the  court,  a  suit  by  passengers 
(a  husband,  wife,  and  family)  against  the  master  of  the  ship  for  con- 
tinued wanton  cruelty  and  ill-treatment,  it  is  certainly  entitled  to  be 
listened  to  with  attention.  The  authority  of  a  master  at  sea  is  neces- 
sarily summary,  and  often  absolute.  For  the  time,  he  exercises  the 
rights  of  a  sovereign  control ;  and  obedience  to  his  will,  and  even  to  his 
caprices,  becomes  almost  indispensable.  If  he  chooses  to  perform  his 
duties  or  to  exert  his  office  in  a  harsh,  intemperate,  or  oppressive 
manner,  he  can  seldom  be  resisted  by  physical  or  moral  force ;  and 
therefore,  in  a  limited  sense,  he  may  be  said  to  hold  the  lives  and  per- 
sonal welfare  of  all  on  board,  in  a  great  measure,  under  his  arbitrary 
discretion.  He  is  nevertheless  responsible  to  the  law ;  and  if  he  is 
guilty  of  gross  abuse  and  oppression,  I  hope  it  will  never  be  found  that 
courts  of  justice  are  slow  in  visiting  him,  in  the  shape  of  damages,  with 
an  appropriate  punishment. 

In  respect  to  passengers,  the  case  of  the  master  is  one  of  peculiar 
responsibility  and  delicacy.  Their  contract  with  him  is  not  for  mere 
shiproom  and  personal  existence  on  board,  but  for  reasonable  food, 
comforts,  necessaries,  and  kindness.  It  is  a  stipulation,  not  for  tolera- 
tion merely,  but  for  respectful  treatment ;  for  that  decency  of  demeanor 
which  constitutes  the  charm  of  social  life ;  for  that  attention  which 
mitigates  evils  without  reluctance,  and  that  promptitude  which  admin- 
isters aid  to  distress.  In  respect  to  females,  it  proceeds  yet  farther,  — 
it  includes  an  impHed  stipulation  against  general  obscenity,  that  im- 
modesty of  approach  which  borders  on  lasciviousness,  and  against  that 
wanton  disregard  of  the  feelings  which  aggravates  every  evil,  and 
endeavors  by  the  excitement  of  terror  and  cool  malignancy  of  conduct 

»  Spc  also  Exton'8  Aclm.  Jurisdio.  70. 


462  CARKIERS    OF   PASSENGERS    BY    WATER. 


Notes. 


to  inflict  torture  upon  susceptible  minds.  What  can  be  more  disrepu- 
table, and  at  the  same  time  more  distressing,  than  habitual  obscenity, 
harsh  threats,  and  immodest  conduct  to  delicate  and  inoffensive 
females?  What  can  be  more  oppi-essive  than  to  confine  them  to  their 
cabins  by  threats  of  personal  insult  or  injury?  What  more  aggravating- 
than  a  malicious  tyranny,  which  denies  Ihem  every  reasonable  request, 
and  seeks  revenge  by  withholding  suitable  food  and  the  common  means 
of  relief  in  cases  of  sea-sickness  and  ill-health?  It  is  intimated  that 
all  these  acts,  though  wrong  in  morals,  are  yet  acts  which  the  law  does 
not  punish ;  that  if  the  pei'son  is  untouched,  if  the  acts  do  not  amount 
to  an  assault  and  battery,  they  are  not  to  be  redressed.  The  law  looks 
on  them  as  unworthy  of  its  cognizance.  The  master  is  at  liberty  to 
inflict  the  most  severe  mental  sufferings,  in  the  most  tyrannical  manner,, 
and  yet,  if  he  withholds  a  blow,  the  victim  may  be  crushed  by  his 
unkindness.  He  commits  nothing  within  the  reach  of  civil  jurispru- 
dence. My  opinion  is  that  the  law  involves  no  such  absurdity.  It  is 
rational  and  just.  It  gives  compensation  for  mental  sufferings  occa- 
sioned by  acts  of  wanton  injustice,  equally  whether  they  operate  by 
way  of  direct  or  of  consequential  injuries.  In  each  case,  the  contract 
of  the  passengers  for  the  voyage  is  in  substance  violated ;  and  the 
wrong  is  to  be  redressed  as  a  cause  of  damage.  I  do  not  say  that  every 
slight  aberration  from  propriety  or  dut3',  or  that  every  act  of  unkind- 
ness or  passionate  folly,  is  to  be  visited  with  punishment ;  but  if  the 
whole  course  of  conduct  be  oppressive  and  malicious,  if  habitual  im- 
modesty is  accompanied  by  habitual  cruelty,  it  would  be  a  reproach  to 
the  law  if  it  could  not  award  some  recompense. 

Let  us  now  proceed  to  the  consideration  of  the  evidence  in  this  case, 
so  far  as  it  applies  to  the  libel,  which  is  not  confined  to  mere  acts  of 
wanton  cruelty  and  misconduct,  but  embraces  in  its  grievances  what  the 
law  in  its  strictest  sense  deems  assaults  and  batteries. 

[The  judge  went  into  a  full  examination  of  the  evidence,  and  came 
to  the  conclusion  that  the  libel  was  sufficiently  proved  to  entitle  the 
libellants  to  damages ;  and  he  accordingly  decreed  that  the  defendant 
should  pay  $400  damages  (being  the  amount  of  his  share  of  the  passage- 
money  received  for  the  passage  of  the  libellants)  and  costs  of  suit.] 

Decree  accordingly. 


NOTES. 

§  1.  Both  Owner  and  Master  are  Common  Carriers,  although  Passen- 
gers are  carried  to  a  Foreign  Country.  —  Both  the  owner  and  master  of  a 
vessel,  undertaking  for  hire  or  reward  to  transport  pasMeujirs  :ro:ii  place  u 


WHO    IS    SUCH    A    CARRIER. 


463 


Who  is  a  Passenger. 


place,  and  who  are  bound  to  cany  all  proper  persons  who  offer  themselves  for 
carriage,  are  common  carriers  of  passengers,  and  subject  to  the  duties  imposed 
by  law  upon  such  carriers. ^  The  fact  that  the  vessel  carries  passengers  from 
a  place  within  the  realm  to  a  point  beyond,  will  not  exempt  them  from  the 
obligation  to  receive  and  carry  all  proper  persons  who  offer  themselves  and  are 
ready  and  willing  to  pay  the  price  of  passage  .^ 

§  2.  Who  is  a  Passenger. —A  person  may  be  on  board  of  a  ship  in  such  a 
capacity  as  to  be  considered  neither  master  nor  one  of  the  crew,  nor  sustain  the 
legal  relation  of  passenger.  Thus,  it  was  held  by  Dr.  Lushixgton,'^  judge  of 
the  High  Court  of  Admiralty,  that  a  person  who  had  paid  no  passage-money,  but 
who  went  on  board  by  permission  of  the  master,  and  messed  with  him,  upon  the 
understanding  that  he  should  do  what  he  could  in  the  working  of  the  ship  for 
his  passage,  was  neither  one  of  the  crew  nor  a  passenger;  that  he  was,  in  fact,  a 
nondescript.  So,  where  the  master  of  a  vessel  had  taken  on  board,  without  the 
knowledge  of  the  owners,  his  wife  and  her  father,  who  paid  no  fare,  it  was  held 
that  they  were  not  passengers.* 

Soldiers  on  board  ship,  under  the  command  of  their  officers,  do  not  occupy  the 
relation  of  passengers,  and  they  can  recover  compensation  for  services  in  assist- 
ing in  keeping  the  vessel  afloat  by  bailing,  working  under  the  command  of  their 
own  officers  and  keeping  up  military  discipline  during  the  time  they  were  so 
employed.^  The  stcUus  of  a  soldier  on  shipboard,  for  whose  transportation 
the  government  had  contracted,  is  not  changed  by  the  expiration  of  his  term 
of  service  and  honorable  dischai-ge  therefrom  during  the  voyage.  While  the 
contract  of  transportation  is  being  performed,  it  is  not  competent  for  the 
government  by  the  act  of  discharge,  or  by  the  soldier  receiving  it,  to  change 
its  terms  so  as  to  give  such  person  new  rights  or  impose  new  obligations  upon 
the  master.^ 

The  question  as  to  what  relation  a  person  held  towards  a  navigation  company, 
whether  that  of  emploj-ee  or  passenger,  was  presented  in  a  California  case,"  the 
facts  of  which  were  as  follows:  At  the  time  the  cause  of  action  accrued,  the 
defendants  were  common  carriers  of  freight  and  passengers  between  San  Fran- 
cisco and  Petaluma,  using  steamboats  between  San  Francisco  and  Rudesel'* 
Landing,  and  between  the  latter  place  and  Petaluma  a  small  locomotive  and 
train  of  cars.  There  was  no  separate  charge  for  passage ;  it  was  all  one  line 
and  was  under  one  management,  the  captain  of  the  steamboat  acting  as  con- 
ductor of  the  cars.  At  the  time  of  the  accident,  the  plaintiff  was  keeping  a  bar 
upon  the  steamboat,  paying  the  company  for  this  privilege  and  the  use  of  a 
stateroom  and  such  meals  as  he  might  desire  upon  the  boat,  and  receiving  to 
his  ovm  use  the  profits  of  all  sales  of  liquors.    The  plaintiff  resided  at  Peta- 

1  Chamberlain  v.  Chandler,  3  Mason,  242;  *  The  Lion,  L.  R.  2  Adm.  102;  a.  c.  38  L.  J. 

ante,  p.  459;  White  v.  McDonough,  3  Sawyer,  (Adm.)  51. 

311;  Anderson  v.  Ross,  2  Sawyer,  91.  '-  The  Steamer  Merrimao,  1  Ben.  201;  «.  c. 

^  Benett    v.   Peninsular   etc.    Steamboat  1  Ben.  68. 

Co.,  ante,  ]>.  448.  *  White  v.  McDonough,  3  Sawyer,  311. 

^The  Hanna,  36  L.  J.  (Adm.)  1;  «.  c.  15  ^  Yeomana  v.  Contra  Costa  etc.  Xav.  Co., 

Week  Rep.  2(53;  L.  R.  1  Adm.  283;  15  L.  T.  44  Cal.  71. 
(N.  8.)  334. 


464  CARRIERS    OF    PASSENGERS    BY   WATER. 


Notes. 


luma,  and  when  about  to  enter  the  cars  at  that  place,  intending  to  make  the 
usual  daily  trip  to  San  Francisco,  the  boiler  of  the  locomotive,  then  in  charge 
of  the  defendants'  engineer,  exploded  and  caused  the  personal  injury  for  which 
the  action  was  brought.  The  question  was,  whether  his  position  as  barkeeper 
did  not  place  him  in  the  relation  of  an  employee  to  the  Navigation  Company. 
On  appeal,  the  court  said:  "As  barkeeper,  he  was  in  no  sense  an  employee 
of  the  defendants.  He  was  a  lessee,  for  a  monthly  rent,  of  an  apartment  upon 
their  boat,  which  he  occupied  for  purposes  of  trade.  His  transportation  over 
the  route  was  a  part  of  the  consideration  for  the  monthly  payment.  The 
defendants  had  no  interest  in  the  receipts  of  his  business,  and  could  not  hold 
him  accountable  for  its  proper  conduct.  The  parties  were  in  no  sense  members 
of  the  same  establishment  for  one  common  purpose.  The  vending  of  liquors 
and  cigars  to  passengers  was  no  part  of  the  business  in  which  the  transportation 
company  were  engaged.  The  case  would  have  been  the  same  if  the  plaintiff  had 
leased  an  apartment  upon  the  boat  for  any  other  species  of  trade.  If  a  cigar- 
vender  should  rent  and  occupy,  for  the  purposes  of  his  trade,  a  corner  of  a 
merchant's  store,  and  an  explosion  should  occur  through  the  negligence  of  the 
merchant's  clerk,  it  would  not  be  contended  that  the  merchant  would  not  be 
responsible  in  damages  to  the  cigar-vender  for  personal  injuries  resulting  from 
the  accident.  The  fact  that  the  place  of  trade  was  upon  a  steamboat  can  make 
no  difference  in  the  application  of  the  principle."  Judgment  for  the  plaintiff 
was  therefore  affirmed. 

One  who  enters  upon  a  passenger-steamboat  in  good  faith,  to  take  passage 
thereon,  is  there  in  the  relation  and  character  of  a  passenger,  and  the  owner 
of  the  boat  owes  to  him  the  duty  of  a  carrier  of  passengers,  although  no  fare 
has  been  paid.^ 

§  3.  When  the  Master  of  a  Vessel  may  refuse  to  receive  Passengers.  — 
Generally  speaking,  common  carriers  of  passengers  by  water,  as  by  land,  are 
bound  to  receive  and  carry  all  proper  persons  who  offer  themselves  for  transpor- 
tation to  the  places  to  which  the  carriers  hold  themselves  out  as  such.-  But 
there  may  be  sufficient  reasons  for  refusing  to  receive  passengers.  If  his  vessel 
is  full,  or  so  full  that  those  who  have  goue  on  board  while  there  was  room 
would  be  incommoded  by  the  addition  of  other  passengers,  the  carrier  may 
decline  to  receive  them.  Indeed,  passengers  who  have  contracted  for  carriage, 
and,  upon  going  aboard,  find  that  the  vessel  is  so  full  as  to  seriously  inconven- 
ience them,  may  recover  back  the  passage-money  already  paid,  and  any  damages 
they  may  have  suffered  by  reason  of  preparing  themselves  for  a  voyage  upon  that 
vessel,  or  by  reason  of  having  to  wait  for  another.* 

The  right  of  passage  on  board  of  a  vessel  is  subject  to  such  reasonable  regula- 


J  Cleveland  ».  New  Jersey  Steamboat  Co.,  age  without  giving  the  passenger  reason - 

68  N.  Y.  306;  a.  c.  5  Hun,  523.  able  opportunity  to  remove  his  baggage,  or 

2  Benett  v.  Peninsular  etc.  Steamboat  Co.,  with  intent  to  carry  it  beyond  his  reach,  he 

6  C.  B.  775,  ante, p. 448;  Pearsons.  Duane,  4  thereby  terminates  the  contract  of  carriage. 

Wall.  605,  ante,  p.  17;   Jencks  v.  Coleman,  and  is  liable  for  carrying  away  the  baggage. 

2  Sumn.  221,  ante,  p.  11.    If  a   ship-owner  Holmes  i'.  Doane,  3  Gray,  328. 

refuses  to  carry  a  passenger  whom  he  had  ^  xhe  Pacific,  1  Blatchf.  569. 
engaged  to  carry,  and  proceeds  on  the  voy- 


REFUSAL  TO  KECEIVE  PASSENGERS.  465 


Expulsion  of  Passengers. 


tions  as  the  owners  may  prescribe  for  the  due  accommodation  of  passengers  and 
for  the  due  arrangement  of  their  business.  They  are  not  bound  to  receive  as 
passengers  persons  who  refuse  to  obey  the  reasonable  regulations  of  the  vessel, 
who  are  guilty  of  gross  and  vulgar  habits,  who  would  make  disturbances,  whose 
•characters  are  doubtful,  dissolute,  or  suspicious ;  and,  a  fortiori,  whose  charac- 
ters are  unequivocally  bad.  Nor  are  they  bound  to  admit  passengers  on  board 
whose  object  it  is  to  interfere  with  the  interests  or  patronage  of  the  proprietors, 
so  as  to  make  the  business  less  lucrative,^  So,  too,  a  master  of  a  vessel  may 
refuse  to  receive  a  passenger  to  be  carried  to  a  place  from  whence  he  has  been 
banished,  if  the  circumstances  of  the  banishment  would,  in  the  opinion  of  the 
master,  tend  to  promote  further  difficulty  should  he  be  returned  to  that  place. ^ 

§  4.  When  a  Passenger  may  be  expelled  from  a  Vessel.  —  But,  in  the  case 
just  noticed,^  it  was  said  that  after  the  vessel  has  put  out  to  sea  it  is  too  late  to 
take  exceptions  to  the  character  of  a  passenger,  or  to  his  peculiar  position,  pro- 
dded he  violated  no  inflexible  rule  of  the  boat  in  getting  on  board,  unless  he 
misbehaves  during  the  voyage.  This  statement  seems  to  have  been  based  upon 
an  instruction  given  to  a  jury  by  Rolfe,  B..,  in  an  English  case.*  In  this  latter 
case,  the  plaintiff  (a  tradesman)  and  his  friends  took  passage  on  an  excursion 
from  London  and  return,  paying  the  passage-money  for  the  trip.  On  the  return, 
as  the  vessel  approached  Gravesend,  the  captain  said  to  the  plaintiff  and  his 
friends:  "  You  are  well  kno\vn;  you  sha'n't  go  with  me  to  London;  3'ou  belong 
to  the  swell  mob,  and  are  pickpockets.  You  must  go  ashore  at  Gravesend;  and 
if  you  will  not  go  by  fair  means,  you  shall  be  compelled  to  go."  On  arriving  at 
Gravesend,  they  left  the  vessel.  They  had  considerable  difficulty  iu  procuring 
means  of  conveyance  to  London,  because  they  had  been  turned  out  of  the 
defendant's  vessel.  In  instructing  the  jury,  Rolfe,  B.,  said:  "The  defendants 
were  responsible  for  any  injury  naturally  I'esulting  from  the  acts  of  the  captain 
when  acting  as  their  servant.  Even  supposing  the  plaintiff  and  his  party  had 
been  pickpockets,  or  belonged  to  the  swell  mob,  that  might  be  a  reason  for  watch- 
ing them,  but,  so  long  as  they  were  not  guilty  of  any  impropriety  on  board, 
formed  no  justification  for  putting  them  ashore;  "  and  he  held  that  the  plaintiff 
was  entitled  to  a  fair  compensation  for  the  injury  received,  so  far  as  the  injury 
arose  from  the  act  of  the  captain  in  putting  him  on  shore.  It  would  seem  that 
there  can  be  no  distinction  in  principle  between  refusing  to  receive  a  passenger 
because  the  carrier  has  reasonable  grounds  to  believe  that  he  will  become  obnox- 
ious, and  putting  him  ashore  for  the  same  reason.  And  in  a  case  where  a  drunken 
passenger  on  a  horse-railroad  was  ejected,  the  court  held  it  to  be  unnecessary  to 
wait  until  an  overt  act  was  committed,  to  justify  the  conductor  in  expelling  him.* 

§  5.  Duty  of  the  Carrier  to  convey  Passenger  to  the  Port  to  which  he  has 
contracted  to  carry  him.  —  It  is  incumbent  upon  the  carrier  to  transport  his 
passengers  to  the  port  to  which  he  has  contracted  to  carry  them.     And  when  pas- 

1  Jencks  v.  Coleman,  ante,  p.  11.  *  Coppin  v.  Braitliwaite,  8  Jur.  875. 

«  Pearson  v.  Duane,  4  Wall.  605;  a.c.ante,  <*  Vinton   v.  Middlesex  K.  Co.,  11  Allen, 

p.  17.  304,  307 ;  ante,  p.  6.    See  also  The  People  v. 

8  Pearson  v.  Duane,  supra.  Caryl,  3  Park.  Cr.  Cas.  326. 

SO 


466  CARRIERS    OF    PASSENGERS    BY    WATER. 


Notes. 


sengers  are  conveyed,  without  their  consent,  to  a  different  port  from  that  agreed 
upon  at  the  time  of  sailing,  no  recovery  can  be  liad  by  the  carrier  for  the  amount 
of  tlieir  passage-money ;  ^  and  if  tliey  have  suffered  damage  by  reason  of  not  being 
carried  to  the  proper  port,  they  may  recover  compensation  in  an  action  there- 
for,'^ whether  they  made  the  contract  for  passage  with  the  master  of  the  ship 
or  with  a  ship-agent,  if  the  action  of  tlie  master  in  reference  to  the  matter  is 
such  as  to  impliedly  ratify  the  acts  of  tlie  ship-agent,  and  they  are  received  on 
board  as  passengers  to  the  port  to  which  they  contracted  to  be  carried.  ThuSj 
it  appeared  that  the  libellants,  in  number  more  than  one  hundred,  had  engaged 
with  a  ship-agent  at  Cork  for  a  passage  to  New  York,  and  some  of  them  had 
purchased  tickets,  in  the  first  instance,  to  sail  direct  to  that  port ;  but  the  vessel 
in  which  it  was  proposed  to  carry  them  not  being  ready  for  sea,  the  ship-agent 
chartered,  it  was  said,  the  "between  decks"  of  the  Wataga,  a  vessel  then  in 
port,  and  bound  to  Philadelphia,  and  gave  to  each  of  the  libellants  a  certificate 
in  the  usual  form,  by  which  he  engaged  they  should  be  carried  to  Philadelphia  on 
board  of  her,  and  with  a  written  indorsement  that  on  her  arrival  at  that  port 
they  would  be  forwarded  to  New  York  free  of  expense.  These  certificates  were 
exhibited  to  the  mate,  and  afterwards  to  the  master,  who  took  possession  of 
them  before  the  vessel  sailed,  and  retained  them  until  he  was  compelled  to  pro- 
duce them  in  court.  On  the  arrival  of  the  vessel  at  Philadelphia,  the  master 
refused  to  forward  them  to  New  York,  and  there  was  no  one  at  Philadelphia 
representing  the  ship-agent,  who  would  do  so.  It  was  held  that  it  must  be  con- 
sidered that  the  agreement  was  made  with  the  master's  concurrence,  and  there- 
fore binding  as  his  act.* 

If  the  carrier  contracts  to  carry  a  passenger  to  a  particular  point,  with  a 
knowledge  of  the  danger  of  effecting  a  landing  at  that  point,  such  danger  will 
not  excuse  him  for  a  failure  to  comply  with  the  contract.*  Where  the  owner  of 
a  line  of  vessels  agrees  to  transport  a  person  from  one  place  to  another  by  a 
particular  line  of  vessels,  and  at  the  time  the  agreement  is  made,  but  unknown 
to  the  proprietor,  one  of  the  connecting  vessels  of  the  line  is  a  total  wreck,  it 
is  his  duty  to  pi'ovide  another  with  all  reasonable  diligence.^  In  such  a  case,  the 
act  of  God  does  not  wholly  excuse  the  carrier  from  the  performance  of  his  con- 
tract. And  the  master  of  a  vessel  will  not  be  excused  from  completing  the 
contract  of  transportation  by  taking  his  passengers  into  another  and  foreign 
port  and  leaving  them  there,  without  their  consent,  because  he  has  learned  that 
another  vessel  has  been  compelled  to  abandon  the  line  on  account  of  hostilities 
existing  at  the  point  of  connection.^ 

§  6.  Payment  of  Passage-Money  —  When  it  may  be  recovered  back.  —  The 
term  "  freight,"  usually  applied  to  compensation  for  the  conveyance  of  the  cargo, 

1  McGloin  V.  Henderson,  6  La.   715.    See  *  Porter  v.  Str.  New  England,  17  Mo.  290. 

Gibson  v.  Bradford,  4  El.  &  Bl.  586;  «.  c.  1  ^  Williams    v.    Vanderbilt,    28   N.    Y.  217 

Jiir.  (N.  S.)  .520;  24  L.  J.  (Q.  B.)  159.  (affirming  s.  c.  29  Barb.  491,  and  overruling 

-  The  Canadian,  1  Brown's  Adm.  11 ;  Cop-  Briggs  v.  Vanderbilt,  19  Barb.  222,  and  Bon- 
pin  V.  Braithwaite,  8  Jur.  875;  Sunday  v.  steel  v.  Vanderbilt,  21  Barb.  26).  See  also 
Gordon,  1  Blatchf.  &  H.  Adm.  .569.  Ward  v.  Vanderbilt,  4  Abb.  App.  Dec.  521. 

3  Dennison  v.  The  Wataga,  1  PMla.  468.  «  West  v.  Str.  Uncle  Sara,  1  McAU.  505. 


RECOVERY    OF    PASSAGE-MONEY.  467 


Construction  of  Contracts  of  Carnage. 

has  been  held  in  its  most  general  sense  to  iuclude  passage-money.  The  same 
rules  govern  the  payment  of  each.'  When  money  is  paid  by  one  party  in  con- 
templation of  some  act  to  be  done  by  the  other,  and  the  thing  stipulated  to  be 
done  is  not  done,  the  money  may  be  recovered  back.  Hence,  Avhen  passage- 
money  is  paid  in  advance,  under  a  contract  to  carry  a  passenger  to  a  particular 
port,  and  the  voyage  is  broken  up  ])y  a  peril  of  the  sea,  and  the  passenger  is  not 
carried  by  reason  thereof  to  his  destination,  there  being  no  custom,  law,  or  con- 
tract to  the  contrary,  he  may  recover  back  the  passage-money  thus  paid.  The 
contract  is  entire,  and  unless  the  voyage  is  fully  performed  by  a  delivery  of  the 
passenger  at  the  port  to  which  the  carrier  has  conti'acted  to  carry  him,  nothing 
has  been  earned.'^  Of  course,  in  an  action  against  the  ship-o%vner,  it  cannot  be 
recovered  back  if  the  passage-money  earned  on  the  voyage  is  to  belong  to  the 
captain  of  the  vessel.^ 

Unless  there  is  an  agreement  or  usage  to  that  effect,  no  passage-money  is  due 
before  the  passenger  has  arrived  at  his  port  of  destination.  On  the  breaking  up 
of  the  voyage,  if  the  passenger  desires  to  proceed,  his  expenses,  or  the  means  of 
proceeding  to  the  port  to  which  he  was  to  be  carried,  must  be  paid  or  tendered 
to  him ;  and  if  this  is  done  when  he  has  not  paid  his  passage-money  in  advance, 
and  he  refuses  to  proceed,  compensation  p>-&  rata  itineris  —  that  is,  such  part  or 
proportion  of  the  whole  passage-money  as  the  part  of  the  voyage  performed  is  of 
the  whole  voyage  —  is  demandable  of  him.*  A  usage  which  requires  that  the 
passage-money  shall  be  paid  in  advance,  and  which  does  not  require  its  return 
although  the  voyage  is  defeated,  does  not  extend  to  a  case  where  the  money  is 
paid  in  anticipation  of  the  sailing  of  the  vessel,  and  she  is  lost  before  the  com- 
mencement of  the  voyage.  In  such  a  case,  the  passage-money  could  be  recovered 
back.'  Where  there  was  a  rule  of  the  East  India  trade,  that  if  a  passenger  refused 
to  go  in  consequence  of  delay  in  the  sailing  of  the  vessel,  he  was  to  forfeit 
one-half  of  the  passage-money  agreed  for,  and  it  appeared  that  a  vessel  bound 
for  the  East  Indies  was  advertised  to  sail  by  a  certain  time,  and  she  did  not  do  so, 
it  was  held  that  a  person  who  refused  to  go  after  having  engaged  passage  was 
liable  for  the  one-half  of  the  amount  agreed  to  be  paid,  unless  either  time  was 
of  the  essence  of  the  contract,  or  the  delay  in  sailing  was  unreasonable.^ 

§  7.  Construction  of  Contracts  of  Carriage  —  Jurisdiction  of  Admiralty 
Courts.  —  Contracts  for  passenger  carriage  at  sea  are  within  the  jurisdiction  of 
the  admiralty  courts.'  In  construing  such  contracts,  the  general  rules  of  con- 
struction apply.  In  an  agreement  under  seal  for  the  hire  of  the  cabins  and 
accommodations  for  passengers  in  a  ship,  where  there  was  a  stipulation  that  if 
it  should  be  necessary,  for  the  convenience  and  at  the  request  of  the  hirer,  to 

1  Brown  r.  Harris,  2  Gray,  350 ;  The  Aber-  «  Yates  v.  Duff,  5  Car.  &  P.  369 

foyle,  1  Blatchf.  300;  The  Pacific,  1  Blatchf.  '  Dennison  v.  The  Wataga,  1  Phila.  468; 

669.  The  Aberfoylo,  1    Blatclif.  360;   Sunday  v. 

-  Brown  V.  Harris,  2  Gray,  359 ;  Watson  v.  Gordon,  1  Blatchf.  &  H.  Adra.  560 ;  The  Moses 

Duykinck,  3  Johns.  335.    And  see  Mulloy  ».  Taylor,  4  Wall.  411;  The  Pacillc,  1  Blatchf. 

Backer,  5  F:ast,  316.  560;  The  Zenobia,   1  Abb.  Adm.  48;  s.  c.  id. 

3  I.ernan  v.  Gordon,  8  Car.  &  P.  302.  80;  Marshall  r.  liazin,  7  X.  Y.  Leg.  Obs.  342. 

<  Jlowland  r.The  Lavinia,  1  Pet.  Adm.  123.  See,  coiUra,  Brackett  v.  Hercules,   1  Gilp. 

•  Gillan  v.  Simpkin,  4  Catnp.  240.  1S4. 


468  CARRIERS    OF    PASSENGERS    BY   WATER. 


Notes. 


put  into  an  intermediate  port  for  stock  or  otherwise,  the  hirer  would  pay  all  port 
and  necessary  charges  consequent  thereon,  it  was  held  that  this  raised  an  implied 
covenant  on  the  part  of  the  captain  who  let  the  cabins  to  put  into  any  such  port 
if  desired.  There  was  also  a  covenant  on  the  part  of  the  captain  to  permit  and 
suffer  the  hirer  to  stow  away  the  baggage  of  the  passengers  in  a  part  of  the  hold. 
This,  it  was  held,  fairly  imported  that  there  should  be  some  demand  or  request 
made  by  the  hirer  for  the  clearing  of  the  space  agreed  on ;  and  that  a  covenant 
to  keep  up  a  supply  of  the  necessary  and  usual  quantity  of  water  for  the  use  of 
passengers,  etc.,  is  not  broken  by  a  deficiency  for  a  short  time,  occasioned  by 
the  unusual  length  of  the  voyage.'  An  officer  in  the  East  India  Company's  ser- 
\ice  came  home  on  a  "  sick  certificate."  By  an  order  of  the  court  of  directors, 
officers  of  his  rank  coming  home  under  these  circumstances  were  to  pay  1,000 
rupees,  and  no  more,  "for  their  passage  and  accommodation  at  the  captain's 
table."  The  defendant  paid  this  amount  into  court,  but  the  plaintiff  asked 
for  £145,  on  the  ground  that,  for  the  regulation  price,  officers  were  only  entitled 
to  swing  their  cots  in  the  steerage;  that  the  defendant  had  a  cabin  to  himself; 
and  that  the  sum  demanded  was  not  more  than  he  received  from  others  who 
enjoyed  the  same  advantage.  It  appeared  that  on  board  the  vessel  during  that 
voyage  no  officers  did  sleep  in  the  steerage;  that  the  cabin  occupied  by  the 
defendant  would  have  remained  empty,  or  been  filled  with  stores,  if  he  had  been 
excluded  from  it ;  and  that  he  had  not  made  any  express  promise  to  pay  more 
than  1,000  rupees.  Lord  Ellexborough  held  that  there  appeared  nothing  to 
raise  an  implied  promise  on  the  part  of  the  defendant  to  pay  more  than  the 
regulation  sum.^ 

Where  A.,  *'  in  consideration  of  §100,  to  be  paid  immediately,"  agreed  that  he 
would  suffer  B.  to  proceed  and  go  in  A.'s  vessel  as  a  ijassenger  from  New  York 
to  St.  Thomas,  and  to  load  on  board,  for  transportation,  goods  to  the  value  of 
$600,  and  B.  paid  the  $100  down,  and  went  on  board  with  his  goods,  but  the 
'es-el,  soon  after  the  commencement  of  the  voyage,  was  shipwrecked  and  lost, 
but  the  goods  were  saved  and  delivered  to  B.,  and  B.  brought  an  action  to  recover 
back  the  $100,  it  was  held  that  this  was  an  agreement  to  receive  B.  and  his 
goods  on  board,  and  not  an  agreement  to  transport  and  deliver  them  at  St. 
Thomas,  and  that  the  plaintiff,  therefore,  was  not  entitled  to  recover  back  the 
money  thus  advanced ;  that  the  considei'ation  for  the  payment  of  the  money  was 
the  receiving  of  B.  and  his  goods  on  board,  and  not  the  transportation  or  delivery 
of  them.^ 

§  8.  Duty  ol  Carrier  as  to  Accommodation  and  Treatment  of  Passengers.  — 
It  is  the  duty  of  the  common  carrier  by  water  to  provide  his  passengers  with 
comfortable  accommodations  both  by  day  and  by  night,  and  with  a  sufficient 
supply  of  wholesome  food,  unless  there  is  a  contract  to  the  contrary.  An 
undertaking  to  carry  a  passenger  in  the  steerage  of  a  steamship  generally 
incluges  the  furnishing  of  such  passenger  with  a  berth,  unless  there  is  a  fair 
understanding  to  the  contrary.  Such  a  passenger  is  entitled  to  the  use  of 
the  steerage-room,  in  which  to  walk  about  or  sit  down,  during  the  voyage,  with- 
out exposure  to  risk  or  inconvenience  from  freight  therein;   but  if  freight  is 

1  Corbyn  v.  Leader,  6  Car.  &  P.  32  (affirmed  *  Adderley  v.  Cookson,  2  Camp.  15. 

in  10  Bing.  275).  '  Watson  v.  Duykinck,  3  Johns.  335. 


DUTIES    OF    CARRIER    DURING    THE    VOYAGE.  469 


Accommodation  and  Treatment  of  Passengers. 

stowed  within  the  steerage-room,  it  is  the  carrier's  duty  to  so  stow  and  secure  it 
as  not  to  cause  injury  to  the  passengers ;  nor  can  the  carrier  impose  any  arbi- 
trary regulation  upon  the  passengers,  with  a  view  of  diminishing  such  risk,  — 
such  as  that  passengers  shall  remain  in  their  berths  during  the  whole  voyage, 
or  in  any  unusual  portion  of  the  steerage. ^ 

Where  the  plaintiff  contracted  with  the  owners  of  a  vessel,  and  paid  for  his 
passage  in  the  cabin,  the  fact  that,  when  he  came  on  board,  the  master  declared 
his  inability  to  lodge  him  in  the  cabin,  and  proposed  that  he  should  forbear 
taking  his  passage,  or  stay  with  his  baggage  on  deck,  did  not  absolve  the  owners 
from  the  obligation  to  accommodate  him  in  the  cabin  with  his  baggage.'' 

In  determining  what  are  comfortable  accommodations  and  what  is  a  sufficient 
supply  of  food,  each  case  would  to  a  gTeat  degree  depend  upon  its  own  circum- 
stances. There  can  be  no  rule  which  will  define  every  instance  of  a  breach  of 
duty  on  the  part  of  the  carrier  in  these  respects.  In  a  case '  where  the  captain 
of  a  ship  was  sued  for  not  furnishing  good  and  fresh  provisions  to  a  passenger. 
Lord  Denmax,  C.  J.,  said:  "  I  think  the  result  of  the  Avhole  is,  that  the  captain 
did  not  supply  so  large  a  quantity  of  good  and  fresh  provisions  as  is  usual  under 
such  circumstances.  But  there  is  no  real  ground  of  complaint,  no  right  of 
action,  unless  the  plaintiff  has  really  been  a  sufferer;  for  it  is  not  because  a 
man  does  not  get  so  good  a  dinner  as  he  might  have  had  that  he  is  therefore  to 
have  a  right  of  action  against  the  captain  who  does  not  provide  all  that  he 
ought." 

While  it  is  the  duty  of  the  officers  of  the  vessel  to  supply  cabin-passengers 
with  seats  at  the  table  during  meals,  yet  the  officers  may  reserve  a  table  in  the 
dinner-cabin  for  their  own  use,  and  may  exclude  passengers  from  it ;  and  if  a 
passenger  should  persist  in  remaining  at  it  after  proper  notice  that  it  was  thus 
reserved,  and  that  jDrovision  would  be  made  for  him  elsewhere,  they  would  have 
the  right  to  use  so  much  force  as  would  be  necessary  to  remove  him.*  Conduct 
unbecoming  a  gentleman,  in  the  strict  sense  of  the  word,  will,  it  seems,  justify 
the  captain  of  a  ship  in  excluding  a  passenger  from  the  cuddy  table,  whom  he 
has  engaged  by  contract  to  provide  for  there ;  but  it  is  difficult  to  say  in  what 
degree  want  of  polish  would,  in  point  of  law,  warrant  such  exclusion;  but  it  is 
clear  that  if  a  passenger  uses  threats  of  personal  violence  towards  the  captain, 
that  officer  may  exclude  him  from  the  table,  and  require  him  to  take  his  meals 
in  his  own  private  apartment.  But  if  a  passenger  be  excluded  from  the  cuddy 
table,  and  his  wife,  not  from  compulsion,  but  from  a  wish  to  be  with  her  hus- 
band, takes  her  meals  with  him  in  private,  this  will  not  amount  to  a  breach  of 
contract  on  the  part  of  the  captain  so  far  as  regards  the  wife." 

In  regard  to  the  treatment  of  passengers  by  the  master  of  a  vessel,  Judge 
Story  says:  "In  respect  to  passengers,  the  case  of  the  master  is  one  of 
peculiar  responsibility  and  delicacy.  Their  contract  with  him  is  not  for  mere 
shiproom  and  personal  existence  on  board."  This  and  other  language  of  Mr.  Jus- 
tice Story  in  the  leading  case  of  Chamberlain  v.  Chandler^  must  be  regarded  as  a 
most  complete  exposition  of  the  duties  of  this  officer.    It  has  been  frequently 

1  The  Oriflamine,  3  Sawyer,  397;  «.  c.  2  ■•  Ellis  r.  Narragansett  Steamship  Co.,  Ill 
Cent.  L.  J.  473 ;  7  Oh.  Leg.  N.  347.  Mass.  146. 

2  St.  Amand  v.  Lizardi,  4  La.  243.  *  Prenrlergast  r.  Compton,  8  Car.  &  P.  454. 

3  Young  V.  Fcwson,  8  Car.  &  P.  55.  •  3  Mason,  242,  245;  ante,  p.  459. 


470  CARKIERS    OF    PASSExNGEKS    BY    WATER. 


Notes. 


quoted  and  made  the  basis  of  decision  in  cases  of  a  similar  character.^  Respect- 
ful treatment  of  the  passengei*  is  equally  due  from  the  other  officers  and  the 
crew  of  the  vessel  as  it  is  from  the  captain,  and  the  master  and  owners  of  the 
vessel  are  liable  for  damages  occasioned  by  the  want  of  it.^  And  seamen  have 
no  right,  even  in  cases  of  extreme  peril  to  their  own  lives,  to  sacrifice  the  lives 
of  passengers  for  the  sake  of  preserving  their  own.  On  the  contrary,  being 
common  carriers,  and  so  paid  to  protect  and  carry  the  passengers,  if,  in  case  of 
a  wreck,  it  becomes  necessary,  in  order  to  save  any  of  those  on  board,  that 
others  should  be  sacrificed,  the  seamen,  beyond  the  number  necessary  to  navigate 
the  boat,  in  no  circumstances  can  claim  exemption  from  the  common  lot  of  the 
passengers.^ 

§9.  Authority  of  Master  of  Vessel  over  Passenger. — The  master  of  a 
vessel  has  absolute  control  over  his  passengers  in  all  that  is  necessary  for  good 
order  or  the  safety  of  the  passengers,  crew,  or  vessel.*  The  passenger  is  bound 
to  obey  all  reasonable  orders  of  the  captain.  If  a  passenger  misconducts  him- 
self, he  may  be  deprived  of  the  accommodations  which  he  has  before  enjoyed, 
or  he  may  be  imprisoned  or  put  in  irons.  But  the  power  of  the  captain  is 
limited  to  the  necessities  of  the  case.  It  would  not  be  sufficient  to  justify  the 
captain  in  putting  a  passenger  in  irons,  that  he  suspected  that  a  mutiny  might  be 
caused  by  language  of  the  passenger ;  but  he  must  show  that  he  had  reasonable 
cause  to  believe  it.^  In  an  emergency,  the  passenger  may  be  compelled  to  assist 
in  working  the  ship ;  and  in  case  of  an  anticipated  attack  from  enemies,  may  be 
assigned  to  a  position  to  assist  in  its  defence.  But  on  his  refusal  to  obey,  undue, 
excessive,  or  cruel  punishment  may  not  be  inflicted  upon  him.® 

§  10.  Right  of  Passengers  to  Salvage. — While  it  is  the  duty  of  the  passenger, 
in  cases  of  emergency,  to  assist  in  the  preservation  and  defence  of  the  ship  so 

1  Nieto  V.  Clark,  1  Cliff.  145;  Pendleton  «.  soon  found  themselves  In  imminent  peril 
Kinsley,  3  Cliff.  416,  ante,  p.  352;  Smith  v.  About  ten  o'clock  on  the  night  after  the 
Wilson,  31  How.  Pr.  272;  McGuire  v.  The  disaster  to  the  ship,  without  casting  lots, 
Golden  Gate,  1  McAU.  104.  the  defendant  and  the  rest  of  the  crew  began 
-  Keene  v.  Lizardi,  5  La.  431.  to  throw  some  of  the  passengers  overboard, 
3  United  States  v.  Holmes,  1  Wall.  jr.  1.  and  did  not  cease  until  they  had  thus  dis- 
This  was  a  case  of  an  indictment  for  com-  posed  of  fourteen  male  passengers.  Not 
mittiug  manslaughter  on  the  high  seas.  A  one  of  the  crew  was  cast  over.  It  seems 
ship,  when  distant  two  hundred  and  fifty  that  the  mate  gave  the  ovder  to  begin  the 
miles  from  land,  struck  an  iceberg,  and  be-  work  of  destruction.  The  passengers  were 
gan  to  fill  so  rapidly  that  it  was  evident  not  consulted  in  the  matter.  One  asked  that 
she  must  soon  go  down.  In  escaping  from  lots  be  drawn,  but  no  attention  was  paid  to 
the  vessel,  the  first  mate  (the  defendant),  his  request,  and  he  was  sacrificed.  The  sur- 
seven  other  seamen,  and  thirty-two  passeu-  vivors,  with  the  exception  of  two  women, 
gers  got  into  the  long-boat.  The  captain,  who  seemed  to  have  jumped  overboard, 
with  others  of  the  crew  and  one  passen-  were  picked  up  by  a  passing  vessel.  The 
ger,  got  into  the  jolly-boat.  On  the  fol-  court,  on  the  trial  of  the  case,  gave  in  his 
lowing  morning,  the  captain,  about  to  part  charge  the  principle  stated  in  the  text,  and 
company  witli  the  long-boat,  gave  its  crew  the  defendant  was  found  guilty  of  man- 
several  directions,  and  enjoined  upon  them  slaughter. 

to  obey  all  the  orders  of  the  mate  as  they  *  Chamberlain  v.  Chandler,  ante,  p.  459. 

would  obey  his,  the  captain's,  which  they  *  King  v.  Franklin,  1  Fost.  &  Fin.  360. 

promised  to  do.    On  account  of  rain  and  the  «  Boyce  v.  Bayliffe,  1  Camp.  58. 
leaking  of   the  long-boat,   those  on  board 


LOSS    OF    BAGGAGE.  471 


General  Rules  Apply. 


long  as  he  remains  on  board,  yet  he  may  abandon  the  ship  at  any  time  he  has  an 
opportunity.  If  he  elects  to  remain  with  the  ship  after  such  an  opportunity 
presents  itself,  he  is  entitled  to  pay  for  services  rendered  by  him  in  saving  the 
ship.  Thus,  where  a  ship,  being  in  danger,  and  the  captain  and  part  of  the  crew 
having  abandoned  her,  a  passenger,  at  the  request  of  the  rest  of  the  crew,  took 
command  and  brought  her  safely  into  port,  it  was  held  that  the  passenger  was 
entitled  to  sue  the  owner  for  salvage. ^ 

§  11.  Baggage  of  Passengers  by  Water.  —  The  general  rules  in  respect  to 
baggage,  applicable  to  carriers  by  land,  we  shall  elsewhere  discuss.^  They  apply 
equally  to  carriers  by  water.  Vessels  engaged  in  carrying  passengers  are  respon- 
sible for  loss  or  damage  to  baggage  while  on  board,  after  it  has  been  placed  in  the 
custody  of  the  officer  whose  duty  it  is  to  take  care  of  it.^  The  money  paid  for  his 
passage  constitutes  the  consideration  for  the  safe-keeping  and  transportation  of 
the  passenger's  baggage.  If,  therefore,  a  passenger  deposits  a  trunk  or  other 
article  of  ordinary  baggage  with  a  carrier,  it  requires  no  further  consideration 
to  support  the  obligation  to  deliver  it  at  the  passenger's  destination.*  But  if 
unaccompanied  by  the  passenger,  it  is  subject  to  the  principles  of  law  gov- 
erning the  reception,  transportation,  and  delivery  of  freight.  A  person  in- 
tending to  take  passage  on  a  steamboat  brought  his  trunk  on  board  and  put 
it  in  the  usual  place  for  baggage,  but  did  not  deliver  it  to  any  one.  It  appeared 
that  receipts  were  not  usually  given  for  baggage,  and  that  there  was  no 
one  whose  particular  business  it  was  to  receive  baggage  from  passengers. 
Through  mistake,  he  did  not  take  passage,  and  the  trunk  was  lost.  It  was  held 
that,  as  he  did  not  take  passage,  any  custom  which  prevailed  as  to  allowing  pas- 
sengers to  deposit  their  baggage  at  a  particular  place  without  being  receipted 
for,  which  might  be  held  a  delivery  to  the  carrier  of  baggage,  would  not  be  a 
delivery  of  the  trunk  in  question;  because,  not  having  taken  passage,  the  plaintiff 
must  show  such  a  delivery  of  it  to  the  carrier  as  would  be  necessary  in  the  case 
of  other  freight.^ 

The  carrier  may  contract  with  the  passenger  not  to  be  liable  for  the  loss  of 
his  baggage  unless  a  receipt  or  bill  of  lading  is  given.  In  such  a  case,  if  the 
passenger  neglects  to  take  a  receipt  or  bill  of  lading  therefor,  and  the  baggage 
is  lost,  he  cannot  recover  for  the  loss.®  The  master  of  a  ship  has  a  lien  on  the 
passenger's  baggage  for  his  passage-mouey.'  If  a  passenger  does  not  accom 
pany  his  baggage,  and  the  baggage  is  received  by  the  carrier,  he  may  claim  com- 
pensation in  advance,  or  may  postpone  his  claim  till  the  delivery,  and  rely  on  his 
lien  or  on  the  personal  responsibility  of  the  owner ;  in  either  of  which  cases 
the  carrier  is  responsible  for  the  safe-keeping  and  delivery  of  the  baggage.^ 

On  the  arrival  of  the  vessel  at  her  port  of  destination,  the  passenger  should 
within  a  reasonable  time  demand  his  baggage.  What  is  a  reasonable  time  is  a 
question  which  the  facts  in  each  case  must  determine.  To  go  to  a  hotel  in  the 
vicinity  of  a  steamboat-landing  and  send  a  porter  for  baggage  has  been  held  not 

»  Newman  v.  Walters,  3  Bos.  &  Pul.  612.  *  The  Elvira  Harbeck,  2  Blatchf.  336. 

And  see  The  Steamer  Merrimac,  1  Ben.  201 ;  ^  Wright  v.  Caldwell,  3  Mich.  51. 

«.  c.  1  Ben.  6S.    But  see  The  Vrede,  1  Lush.  «  Wiltoii  v.  Atlantic  etc.  Nav.  Co.,  10  C.  B. 

322.  (N.  8.)  453. 

*  Post,  Chap.  XVI.  '  Wo:f  v.  Summers,  2  Camp.  031. 

»  Moore  V.  Evening  Star,  20  La.  An.  402.  f  The  Elvira  Harbeck,  2  IJIatchf.  336 


472  CARRIERS    OF    PASSENGERS    BY    WATER. 


Notes. 


to  be  an  nnreasonable  delay ;  *  and  in  a  case  where  the  passenger  was  put  off  at 
quarantine,  and  the  vessel  continued  to  her  port  of  destination,  a  delay  of  sev- 
eral days  in  calling  for  the  baggage  was  held  not  to  be  unreasonable. ^ 

A  carrier  of  passengers  at  sea  may  require  that  portion  of  the  baggage  not 
necessary  for  daily  use  to  be  deposited  in  any  suitable  place  which  he  may 
designate.  If  the  passenger  prefers  to  take  charge  of  his  own  baggage,  he  must 
assume  the  risk  of  its  loss.  A  steerage-passenger  who  took  his  trunk  into  the 
steerage  with  him,  placed  it  under  his  bed  and  fastened  it  with  ropes  to  his 
berth,  it  was  held,  could  not  recover  for  its  loss  wliere  there  was  no  negligence 
shown  on  the  part  of  the  carrier.^  But  even  where  the  passenger  retains  control 
of  his  baggage,  if  the  carrier  is  negligent,  whereby  the  baggage  is  lost,  he  will 
be  liable.* 

What  constitutes  baggage,  we  shall  consider  in  another  place .^  It  has  been 
held  that  the  bedding  of  a  steerage-passenger,  who  is  bound  to  provide  his  own 
bedding  for  the  voyage,  constitutes  a  part  of  his  ordinary  baggage. ^ 

§  12.  Injuries  to  Passengers  getting  on  or  off  of  a  Vessel.  —  The  owners  of 
vessels  carrying  passengers  are  bound  to  exercise  the  utmost  diligence  an&l  the 
employment  of  every  means  in  their  power  to  insure  the  safety  of  passengers. 
They  must  exercise  diligence  not  only  in  regard  to  the  construction  of  their 
vessels,  and  the  management  of  them  after  passengers  have  come  on  board,  but 
also  in  providing  proper  means  of  approaching  them,  of  ascending  to  and 
descending  from  them.'  Passengers  have  the  right  to  require  to  be  set  on  shore 
safely.  The  evidence  in  a  case  showed  that  a  passenger  while  disembarking  was 
walking  along  a  stage  which,  on  account  of  the  high  water,  presented  a  very 
considerable  declivity  from  the  boat  to  the  shore ;  that  when  a  short  distance 
from  the  land,  a  barrel  of  flour  then  undor  the  guidance  of  a  deck-hand  got 
loose  from  his  hold,  or  was  purposely  let  go,  and  rolled  down  upon  him,  break- 
ing one  of  his  legs  and  otherwise  injuring  him.  There  was  some  evidence  that 
after  the  barrel  was  let  loose  some  one  called  "Look  out,"  and  one  witness  was 
sure  that  the  passenger  had  time  to  jump  from  one  stage  to  another.  But  the 
court  said  there  should  be  no  necessity  for  passengers  disembarking  to  "  look 
out,"  or  to  jump  from  one  stage  to  another  in  order  to  save  life  or  limb,  and  hek^ 
that  the  evidence  was  satisfactory  that  the  injury  received  by  the  plaintiff  wa- 
the  result  of  a  reckless  disregard  of  his  safety  as  a  passenger,  and  without  con- 
tributory negligence  on  his  part.^ 

If  the  passenger-carrier  cannot  maintain  an  absolute  barrier  against  danger  t(>^ 
his  passengers  while  disembarking,  it  is  his  next  duty  to  warn  them  of  it ;  and  il 
he  omits  such  warning,  he  will  be  liable  for  any  injury  caused  by  its  omission. 
If  the  passenger  in  such  a  case  disregards  the  warning,  he  takes  the  risk  of 
injury  on  himself,  and  so  exonerates  the  carrier.*    The  defendants,  a  dock  com- 

1  Nevins  v.  Bay  State  Steamboat  Co.,  4  *  pos<,  Chap.  XVI. 

Bosw.  225.  '^  Hirschsohn  v.  Hamburgh  etc.  Packet  Co., 

2  Gilhooly  v.  New  York  etc.  Nav.  Co.,  1       2  Jones  &  8p.  521. 

Daly,  197.  '  John  v.  Bacon,  L.  R.  5  C.  P.  437. 

3  Cohen  v.  Frost,  2  Duer,  335.  See  also  s  julien  v.  Str.  Wade  Hampton,  27  La.  An. 
Clark  V.  Burns,  118  Mass.  275.                                 377.    See  also    Keokuk    etc.  Packet   Co.  ». 

*  American  Steamship  Co.  v.  Bryan, 83  Pa.       True,  88  111.  608. 
St.  446.  8  Brockway  v.  Lascala,  1  Edm.  135. 


EMBAKKING    AND    DISEMBARKING.  AT6 


Carrier  must  provide  Facilities. 

pany,  provided  gangways  from  the  shore  to  the  ships  lying  in  their  dock,  the 
gangways  being  made  of  materials  belonging  to  the  defendants  and  managed  by 
their  servants.  The  plaintiff  went  on  board  a  ship  in  the  dock,  at  the  invitation 
of  one  of  the  ship's  officers,  and  while  he  was  on  board,  the  defendants'  ser- 
vants, for  the  purpose  of  the  business  of  the  dock,  moved  the  gangway  so  that  it 
was  to  their  knowledge  insecure.  The  plaintiff,  without  any  warning  from  the 
defendants'  servants,  and  iu  ignorance  of  its  insecurity,  returned  along  it  to  the 
shore ;  the  gangway  gave  way,  and  he  was  injured.  It  was  held  that  the  plaintiff 
was  entitled  to  recover  damages  from  the  defendants  for  the  injuries  he  received.' 

But  the  duty  to  provide  safe  means  for  passengers  getting  on  board  of  a 
vessel  does  not  exist  at  such  times  as  he  is  not  ready  to  receive  them,  and  where 
there  is  no  contract  or  usage  requiring  him  to  be  in  readiness.  Thus,  a  vessel 
was  Ijing  alongside  a  wharf  of  a  railroad  company,  where  she  had  gone  to  re- 
ceive her  cargo.  There  were  no  means  devised  for  the  reception  of  passengers, 
nor  was  it  the  custom  of  vessels  to  receive  passengers  there ;  but,  on  the  con- 
trary, vessels  of  that  class  had  their  passengers  conveyed  to  them  by  means  of 
wherries  or  tugs.  A  passenger  attempted  to  board  the  vessel  from  this  wharf 
by  climbing  up  the  timbers  of  the  wharf,  and  thence  to  the  vessel  by  a  gangway, 
which  was  very  narrow,  and,  by  his  own  awkwarcbiess,  stumbled  and  fell.  It 
was  held  that  he  was  guilty  of  contributory  negligence,  and  could  not  recover 
damages  for  the  injuries  thereby  received. '■' 

Evidence  of  the  means  used  on  other  vessels,  and  the  opinion  of  experts  as  to 
the  excellence  of  those  used  upon  the  vessel  where  the  accident  occurred,  will 
be  received  to  show  the  exercise  of  due  care  on  the  part  of  the  owners  of  the 
vessel  where  an  injury  occurs  by  reason  of  the  alleged  imperfection  of  the  means 
afforded  passengers  to  embark  or  disembark.  It  appeared  that  the  plaintiff,  a 
passenger  on  the  defendant's  boat,  slipped  and  fell  down  the  stairway  of  the 
vessel  as  she  was  disembarking,  and  that  upon  each  step  of  the  stairway  of 
the  boat  was  a  brass  plate  which  was  corrugated  except  where  it  turned  over 
the  edge  of  the  step,  this  being  smooth  and  slippery.  The  plaintiff  claimed  that 
the  placing  of  this  plate  upon  the  stairway  was  negligence  on  the  part  of  the 
owners  of  the  vessel.  As  it  was  shown  that  the  stairs  were  finished  in  the 
same  manner  as  upon  the  best  river-boats  and  upon  American  sea-going  steam- 
ers; that  the  boat  had  been  in  use  a  year,  and  had  carried,  on  an  average,  a 
thousand  passengers  a  day,  and  no  injury  of  the  kind  had  ever  before  occurred ; 
and  sevei'al  experts  had  testified  that  this  mode  of  covering  stairs  was  the  best 
in  use,  —  it  was  held  that  the  evidence  failed  to  show  negligence  on  the  part  of 
the  defendant,  and  that  a  refusal  to  nonsuit  the  plaintiff  was  error.^ 

Where  a  steamboat  lands  at  a  place,  to  remain  there  for  two  hours,  and  puts 
out  its  staging  to  enal)le  persons  to  get  on  and  off  the  boat,  it  is  not  reasonable 
to  hold  that  a  passenger  to  a  point  further  on  should  remain  on  board  all  the 

1  Smith  V.  London  etc.  Docks  Co.,  L.  R.  3  on  the  part  of  owners  of  vessels  in  the  cou- 
C.  P.  326.  See  also  John  v.  Bacon,  L.  R.  5  C.  struction  of  the  means  used  for  the  ingress 
P.  437.  and  egress  of  passengers,  see  Cleveland  v. 

2  The  Ship  Anglo-Norman,  4  Sawyer,  185.        New  Jersey  SteamboatCo.,  68  N.  Y.  306  (over- 
•'  Crocheron  r.  Nortli  Shore  etc.  Ferry  Co.,        ruling  s.  c.  ."j  Hun,  ,523) ;  Dougan  v.  Champ- 

56  N.  Y.  656  (reversing  s.  c.  1  Thomp.  &  C.  lain  Transp.  Co.,  56N.  Y.  1.  See  also  Grieva 
446).  See  also  Grafter  v.  Metropolitan  R.  Co.,  v.  Ontario  etc.  Steamboat  Co.,  4  Upper  Can- 
ante,  p.  88.    For  cases  of  alleged  negligence       ada  C.  P.  387. 


474  CARRIERS    OF    PASSENGERS    BY    WATER. 


Notes. 

time  of  the  stay;  and  by  attempting  to  go  on  shore,  observing  due  prudence  and 
care,  lie  will  not  be  guilty  of  any  wrong  or  negligence  depriving  him  of  a  right 
of  recovery  for  a  personal  injury  carelessly  or  recklessly  inflicted  on  him  by  the 
employees  of  the  boat.' 

§  13.  Rights  of  Passengers  inter  se  to  Berttis  on  Steamboats.  —  In  an 
action  in  which  one  of  the  questions  between  the  parties  was  whether  the 
defendant  was  justified  in  expelling  the  plaintiff  from  a  berth  in  a  steamer,  it 
was  proved  that  the  plaintiff  placed  his  coat  upon  the  berth  while  it  was  vacant, 
afterwards  applied  at  the  office  of  the  company  to  which  the  steamer  belonged, 
for  the  purpose  of  engaging  the  berth,  and  caused  the  company's  agent  or  clerk 
then  in  attendance  at  the  office  to  enter  his  (the  plaintiff's)  name  on  the  way-bill 
opposite  the  number  of  the  berth,  but  that,  the  defendant  having  also  applied 
for  the  same  berth,  another  agent  or  clerk  of  the  company  altered  the  way-bill 
by  inserting  the  defendant's  name  opposite  the  berth  and  allotting  another  one 
to  the  plaintiff,  and  that  the  plaintiff,  upon  returning  to  the  berth  in  dispute, 
after  the  steamer  had  started,  found  the  defendant's  servant  at  the  door,  w'ho 
refused  to  allow  him  to  enter.  The  plaintiff  afterwards  entered  the  berth,  and 
was  removed  by  the  defendant.  Evidence  was  also  given  that,  according  to 
the  usage  on  board  the  steamer,  the  rights  of  the  passengers  inter  se  to  berths 
during  the  voyage  were  to  be  determined  by  the  way-bill  as  finally  settled  and 
sent  on  board,  and  that  disputes  during  the  voyage  with  respect  to  passengers' 
accommodation  should  be  decided  by  the  captain  or  steward.  It  was  held  that 
the  plaintiff  was  not  entitled  to  a  direction  that  he  was  in  possession  of  the 
berth  in  dispute ;  that  the  way-bill  as  finally  settled  and  delivered  to  the  officers 
on  board  determined  the  right  to  the  berth  as  between  the  plaintiff  and  the 
defendant;  and  that  the  jury  having  found  that  the  way-bill,  as  finally  settled 
for  the  purpose  of  the  voyage,  allotted  the  berth  to  the  defendant,  and  that  the 
defendant  was  in  possession  thereof  at  the  time  of  the  alleged  assault,  he  was 
justified  in  removing  the  plaintiff,  without  usiug  unnecessary  violence,  upon  his 
refusal  to  leave  the  berth. ^ 

§  14.  Duty  of  Carrier  as  affected  by  Quarantine. — A  voyage  from  one  sea- 
port to  another  is  not  completed  at  the  quarantine  of  the  port  of  destination; 
and  unless  excused  by  special  agreement,  or  by  the  health-laws  preventing  inter- 
course with  the  city,  the  vessel  is  bound  to  carry  a  passenger  and  his  baggage 
to  the  point  agreed  on.'  If,  on  the  arrival  at  port,  the  city  authorities  find  it 
necessary,  in  order  to  prevent  the  spreading  of  a  contagious  disease  which  exists 
on  board  of  a  vessel,  to  have  the  sick  passengers  sent  to  the  hospital  to  be 
treated,  the  owners  of  the  vessel  cannot  be  made  liable  for  the  expenses  thereby 
incurred.* 

§  15.  Limitation  of  Liability  by  English  Merchants'  Shipping  Act.  — By  an 
English  act^  designed  to  encourage  the  investment  of  capital  in  ships,  the  lia- 

1  Keokuk  etc.  Packet  Co.  v.  True,  88  111.  608.  t  New  Orleans  v.  The  Windermere,  12  La. 

-  Dysart  v.  Montgomery,  Irish  Rep.  8  0.  L.  An.  84. 

245.  »  Merchants'  Shipping  Act,  1854,  17  &  18 

3  Gilhooly  v.  New  York  etc.  R.  Co.,  1  Daly,  Vict.,  c.  104;  Amendment  Act,  1S6'2,  25  &  26 

197.  Vict.,  c.  63. 


STATUTES  OF  THE  UNITED  STATES.  475 


Historical  Sketch, 

bility  of  owners  of  ships  for  damages  caused  by  certain  accidents  happening  to 
such  ships  was  limited  to  an  aggregate  amount  not  exceeding  £15  for  each  ton 
of  their  ship's  tonnage.  It  appeared  in  a  case  where  a  railroad  company  also 
the  owner  of  a  ship  had  contracted  to  carry  a  passenger  and  his  luggage  from 
London  to  Guernsey  partly  by  rail  and  partly  by  water,  that  the  vessel  upon 
which  the  passenger  and  his  luggage  were  being  carried  sunk.  The  passenger 
brought  an  action  for  the  loss  of  his  luggage  and  for  delay.  In  an  action  under 
the  statute  to  restrain  the  suits  thus  brought  and  to  have  the  Court  of  Chancery 
distribute  amounts  due  the  several  parties  injured  by  the  sinking  of  the  vessel, 
it  was  contended  that,  as  the  passenger  had  bought  his  ticket  in  London,  it  was 
a  contract  of  carriage  to  which  the  Merchants'  Shipping  Act  did  not  apply ;  that 
the  ticket  in  question  was  bought  from  a  railroad  company,  with  whom  the  con- 
tract to  carry  was  made,  while  the  act  limiting  the  liability  only  applied  to  ship- 
owners ;  but  the  court  held  otherwise,  and  the  actions  were  restrained,  except 
those  for  delay.i 

§  Ifi.  Parties  to  Action  in  Case  of  Injury  to  Passenger  from  Collision  of 
Vessels.  — Where  a  collision  between  two  vessels  results  from  the  fault  of  both, 
a  passenger  on  one  of  them  sustaining  injuries  from  the  collision  may  recover 
damages  against  both  vessels,  and  they  may  be  proceeded  against  in  the  same 
libel.  The  damages  recovered  in  such  a  case  may  be  apportioned  by  the  decree 
equally  between  the  two  vessels ;  and  at  the  same  time  the  right  may  be  reserved 
to  the  libellant  to  collect  the  entire  amount  of  either  of  them,  in  case  of  the  ina- 
bility of  the  other  to  respond  for  her  portion. ^ 

§  17.  United  States  Statutes  affecting  Carriers  of  Passengers  by  Water.  — 
(1.)  Historical  Sketch  of  Statutes.  —  It  is  well  understood  that  the  exclusive 
power  has  been  conferred  upon  Congress  in  respect  to  the  regulation  of  com- 
merce between  the  several  States.  Beyond  all  doubt,  the  power  as  conferred 
includes  navigation  as  Avell  as  traffic,  and  it  is  equally  well  settled  that  it  extends 
to  ships  and  vessels  exclusively  employed  in  conveying  passengers  as  well  as 
those  engaged  in  transporting  goods  and  merchandise.^  Congress  has  at  various 
times  exercised  its  prerogative  in  this  particular.  In  1838  it  passed  an  act  '*  to 
provide  for  the  better  security  of  the  lives  of  passengers  on  board  of  vessels 
propelled  in  whole  or  in  part  by  steam."  *  This  act  provided  for  the  appointment 
of  inspectors  whose  duty  it  was  at  stated  intervals  to  examine  the  hull,  boilers, 
and  machinery  of  vessels  within  the  act.  It  further  directed  the  employment 
of  a  competent  number  of  experienced  and  skilful  engineers,  and  prescribed 
rules  for  the  operation  of  such  vessels,  made  provision  for  life-saving  apparatus 
proportioned  to  the  tonnage  of  vessels,  and  adopted  measures  for  the  control 
of  fires  by  requiring  each  vessel  to  provide  as  a  part  of  its  machinery  flre- 

1  London  etc.  R.  Co.  v.  James,  L.  R.  8  Ch.  Transp.  Co.,  56  X.  Y.  1;  City  of  Brussels,  6 
241.  Ben.  370;  Stuamboat  Ottawa,  1  Newb.  Adm. 

2  The  Washington  and  the  Gregory,  9  536;  Swarthoutj;.  New  Jersey  Steamboat  Co., 
Wall.  513  (affirming  8.  c.  2   Ben.  226).    See  48  N.  Y.  200. 

also  The  Milan,  tush.  388.    For  cases  decid-  "  Per  Clifford,  J.,  in  Hall  v.  De  Cuir,  95 

ing  the  question  of  jurisdiction  of  admiralty  U.  S.  485,  491,  citing   Gibbons  v.    Ogden,   9 

courts,  see  Chisholm  v.  Northern  Transp.  Wlieat.  1. 

Co.,  61    Barb.    363;    Dougan   v.    Champlain  '  Act  1838,  chap.  191,  5  Stats,  at  Large,  304. 


476  CARRIERS    OF    PASSENGERS    BY   WATER. 


Notes. 


extinguishing  apparatus.  Penalties  were  provided  for  violation  of  the  provi- 
sions of  the  act,  and  the  officers  and  employees  whose  negligence  or  misconduct 
resulted  in  the  loss  of  lives  of  passengers  were  declared  guilty  of  manslaughter, 
punishable,  npou  conviction  in  any  Circuit  Court  of  the  United  States,  by  con- 
finement at  hard  labor  for  a  period  not  exceeding  ten  years.  And  finally,  it 
enacted  that  in  suits  against  the  proprietors  of  steamboats  for  injuries  to  the 
person  or  property  from  the  bursting  of  the  boiler  of  any  steamboat,  or  the 
collapse  of  a  flue,  or  other  injurious  escape  of  steam,  the  fact  of  such  accident 
should  be  taken  as  full  jmma  facie  evidence  sufficient  to  charge  the  defendant 
vnth  negligence,  until  the  defendant  should  show  that  there  was  no  negligence  on 
his  part  or  that  of  his  employees. 

The  foregoing  act  was  followed  by  another  in  184:3, ^  which  modified  the  effect 
of  the  former  act  in  some  few  details.  In  1852,2  an  act  was  passed  "  to  pi'ovide 
for  the  better  secui'ity  of  the  lives  of  passengers  on  board  of  vessels  propelled 
in  whole  or  in  part  by  steam."  By  this  act  the  policy  of  the  previous  acts  was 
greatly  extended,  and  the  result  was  quite  an  elaborate  set  of  provisions  having 
in  view  the  purpose  of  the  title.  This  was  followed  by  brief  resolutions  upon 
this  matter,^  and  in  1855*  by  "an  act  to  regulate  the  carriage  of  paiisengers  in 
steamships  and  other  vessels,"  and  by  other  acts  furthering  the  purposes  of 
preceding  acts,^  until,  in  1871,^  an  act  was  passed  consolidating  the  provisions 
of  previous  acts,  and  expressly  repealing  certain  other  acts.'' 

(2.)  Condensed  Statement  of  the  Provisions  of  the  Act  of  February  2S,  1871. — 
This  act  provides  for  the  appointment  of  a  supervising  inspector-geuei-al  under 
the  direction  of  the  secretary  of  the  treasury,  to  superiutend  the  administration 
of  the  steamboat-inspection  laws,  and,  among  other  things,  preside  at  the  annual 
meetings  of  a  board  of  ten  supervising  inspectors.     The  supervising  inspectors 

1  Act  1843,  chap.  94,  5  U.  S.  Stats,  at  Large,  they  meant  to  reside,  together  with  the 
G26.  number  dying  upon  the  voyage.    This  act, 

2  Act  1852,  chap.  106,  10  U.  S.  Stats,  at  and  later  acts  passed  upon  the  same  subject 
Large,  61.  (Act  1847,  chap.  16,  9  U.  S.  Stats,  at  Large, 

^  Resolution    of   Jan.    7,  1853,   No.   5,    10  127;    Act  1847,  chap.   34,    9  U.   S.   Stats,    at 

U.  S.  Stats,   at   Large,  261;    Resolution   of  Large,  149;  Act  1848,  chap.  7,  9  U.  S.  Stats. 

March  3, 1853,  No.  13, 10  U.  S.  Stats,  at  Large,  at  Large,  210;   Act  1848,  chap.   41,    9  U.  S. 

262.  Stats,  at  Large,  220;  Act  1849,  chap.  Ill,  9  U. 

*  Act  1855,  chap.  213;    10  U.   S.  Stats,  at  S.  Stats,  at  Large,  399),  were  all  expressly 

Large,  715.    It  will  be  noticed  that  this  act  repealed  by  the  act  of  1855. 
does  not  relate  to  steam-vessels  exclusively,  ^  Act  1864,  chap.  113,  13  U.  S.  Stats,  at 

but  to  the  carriage  of  passengers  upon  mer-  Large,  120;  Act  1864,  chap.  249, 13  U.  S.  Stats. 

chant  vessels  as  well.    The  first  act  upon  at  Large,  390;   Act  1865,  chap.  94,  13  U.  S. 

this   subject   was  passed    in  1819.    3  U.  S.  Stats,  at  Large,  514;  Act  1866,  chap.  234,  14 

Stats,    at   Large,    488,    chap.    46.    This    act  U.  S.  Stats,  at  Large,  227. 
limited    the   number  of   passengers   to    be  «  Act   1871,  chap.  100,   16  U.  S.  Stats,  at 

carried  in  proportion  to  the  ship's  tonnage,  Large,  440.    See  also  U.   S.  Key.   Stats.,  §§ 

and  prescribed  forfeitures  for  the  carriage  4399-4500. 

of  passengers  in  excess  of  the  ratio  of  two  ■  Act   1838,  chap.  191,   5   U.  S.  Stats,  at 

for  every  five  tons ;  the  amount  of  stores  to  Large,  304 ;  Act  1843,  chap.  94,  5  U.  S.  Stats. 

be  shipped  for  each  passenger,  and  a  pen-  at  Large,  626;  Act  1852,  chap.  106,  10  U.  S. 

alty  for   putting  passengers  upon  a  short  Stats,  at  Large,  61;  Act  1864,  chap.  78,13  U. 

allowance;  that  a  list  of  all  the  passengers  S.  Stats,  at  Large,  63;  Act  1864,  chap.  113,  13 

be  delivered  to  the  collector,  etc.,  showing  U.  S.  Stats,  at  Large,  120;  Act  1865,  chap.  94, 

the  age,  sex,  and  occupation  of  passengers,  13  U.  S.  Stats,  at  Large,  514 ;  Act  1866,  chap, 

the  country  to  which  they  belonged,  where  234,  14  U.  S.  Stats,  at  Large,  227. 


STATUTES  OF  THE  UNITED  STATES.  477 


Act  of  February  28,  1871. 

have  control  of  local  boards  of  inspectors  •within  their  several  districts,  and  it  is 
the  business  of  the  former  to  examine  into  the  doings  of  the  latter,  visit  any 
vessels  licensed  under  the  act,  when  they  shall  deem  fit,  to  ascertain  whether 
the  statutory  provisions  are  observed  by  local  inspectors  and  the  officers  of  the 
vessels.  All  vessels  propelled  in  whole  or  in  part  by  steam,  navigating  any 
waters  of  the  United  States  which  are  common  highways  of  commerce  or  open 
to  general  or  competitive  navigation,  excepting  public  vessels  of  the  United 
States,  vessels  of  other  countries,  and  boats  propelled  in  whole  or  in  part  by 
steam  for  navigating  canals,  are  declared  to  be  subject  to  the  provisions  of  the 
act. 

It  is  the  duty  of  the  board  of  supervising  inspectors  before  mentioned  to 
establish  regulations  to  be  observed  by  all  steam-vessels  in  passing  each  other. 
The  act  provides  for  the  appointment  of  inspectors  of  hulls  and  boilers  in  cer- 
tain collection  districts  named.  It  is  the  duty  of  these  officers  to  make  at  least 
an  annual  inspection  of  the  hulls  and  boilers  of  vessels  within  their  districts, 
satisfy  themselves  that  the  vessel  is  suitable  for  the  service  in  which  she  is  to  be 
employed ;  that  there  are  suitable  accommodations  for  passengers  and  the  crew ; 
that  all  the  requirements  of  the  law  in  regard  to  fires,  boats,  pumps,  hose,  life- 
preservers,  floats,  anchors,  cables,  and  other  things  are  faithfully  complied  with. 
The  boilers  are  to  be  subjected  to  hydrostatic  pressure,  and  the  inspectors  are  to 
satisfy  themselves  in  a  great  number  of  stated  particulars  that  the  vessel  may  be 
used  in  the  service  proposed,  without  peril  to  life.  Having  finished  their 
inspection,  it  is  the  duty  of  these  officers,  if  the  result  is  satisfactory,  to  make 
and  subscribe  and  verify  by  oath  a  certificate  to  this  effect  to  the  collector  or 
other  chief  officer  of  the  customs  of  the  district,  two  copies  of  which  shall  be 
placed  in  conspicuous  places  in  the  vessel,  where  they  will  be  most  likely  to  be 
observed  by  passengers  and  others,  and  there  kept  at  all  times  framed  under 
glass. 

The  act  proceeds  to  provide  penalties  for  the  carriage  of  gunpowder  upon 
vessels  engaged  in  carrying  passengers,  without  the  authority  of  a  certificate  of 
the  inspectors  for  carrying  it  in  a  specified  manner ;  for  the  improper  and  unlaw- 
ful construction  of  boilers ;  for  counterfeiting  the  marks  and  stamps  for  boiler- 
iron  or  steel  plates  required  by  the  act ;  for  intentionally  loading  or  obstructing 
the  safety-valve  of  a  boiler,  or  employing  any  device  whereby  the  boiler  is  sub- 
jected to  a  greater  pressure  than  the  amount  allowed;  for  intentionally  derang- 
ing or  hindering  the  operation  of  any  machinery  or  device  employed  to  denote 
the  state  of  the  water  or  steam  in  the  boiler,  or  to  give  warning  of  approaching 
danger ;  or  for  intentionally  permitting  the  water  to  fall  below  the  prescribed 
low-water  line  of  the  boiler. 

Provision  is  also  made  for  licensing  and  classifying  the  masters,  chief  mates, 
engineers,  and  pilots  of  all  steam-vessels  by  the  local  inspectors,  and  for  the 
revocation  or  suspension  of  such  license  upon  satisfactory  proof  of  the  unfitness 
of  the  licensee  to  act  under  such  authority.  No  person  is  permitted  to  serve  as 
master,  chief  mate,  engineer,  or  pilot  on  any  steamer,  who  is  not  so  licensed  by 
the  inspectors. 

It  is  also  enacted  that  no  steamer  carrying  passengers  is  permitted  to  depart 
from  any  port  unless  having  a  full  complement  of  licensed  officers  and  a  full 
crew;   that  no  greater  number  of  passengers  shall  be  taken  on  board  than  is 


478  CARKIEKS    OF    PASSENGERS    BY    WATER. 


Notes. 


stated  in  the  certificate  of  inspection;  that  the  master  of  every  passenger- 
steamer  shall  keep  a  correct  list  of  all  the  passengers  received  and  delivered 
from  day  to  day,  noting  tlie  places  where  received  and  where  landed;  that 
every  steamer  carrying  passengers  or  freight  shall  be  supplied  with  stated  means 
for  the  prevention  of  and  exlingaishing  of  fire ;  that  certain  enumerated  danger- 
ous articles  shall  neither  be  carried  as  freight  nor  used  as  stores  on  passenger- 
steamers,  and  others  of  a  like  character  to  be  carried  only  upon  certain  condi- 
tions; that  life-preservers  or  floats  shall  be  provided  in  numbers  equal  to  the 
number  of  passengers  which  the  steamer  is  entitled  to  carry ;  that  convenient 
means  of  exit  shall  be  provided  for  passengers,  which  shall  not  be  interfered 
with  by  the  stowage  of  freight ;  that  life-boats,  metallic  and  otherwise,  shall  be 
provided  according  to  the  needs  of  each  vessel. 

Finally,  it  is  provided  that  whenever  damage  is  sustained  by  any  passenger  or 
his  baggage,  from  explosion,  fire,  collision,  or  other  cause,  the  master  and  the 
owner  of  such  vessel,  or  either  of  them,  and  the  vessel,  shall  be  liable  to  each  and 
every  person  so  injured,  to  the  full  amount  of  damage,  if  it  happens  through  any 
neglect  or  failure  to  comply  with  the  provisions  of  the  act,  or  through  known 
defects  or  imperfections  of  the  steaming  apparatus  or  of  the  hull ;  that  any  per- 
son sustaining  loss  or  injury  through  the  carelessness,  negligence,  or  wilful 
misconduct  of  any  master,  mate,  engineer,  or  pilot,  or  his  neglect  or  refusal  to 
obey  the  laws  governing  the  navigation  of  such  steamers,  naay  sue  such  master, 
mate,  engineer,  or  pilot,  and  recover  damages  for  any  such  injury  caused  by 
him. 

All  of  the  requirements  of  this  act  to  which  we  have  thus  briefly  alluded  are 
set  out  with  many  elaborate  details,  together  with  ancillary  and  other  provisions 
which  we  have  not  space  <to  notice. 

(3.)  Condensed  Statement  of  the  Provisions  of  the  Act  of  March  3,  1855. — 
It  will  be  observed  that  of  all  the  acts  mentioned  in  the  historical  sketch  at  the 
beginning  of  this  section,  that  of  the  year  1855  ^  is  the  only  one  not  expressly 
repealed  by  the  act  of  1871,  to  which  we  have  just  given  extended  notice.  The 
provisions  of  this  act  are  incorporated  in  the  Revised  Statu tes,^  to  which  brief 
allusion  will  be  made.  This  act  provides  that  no  master  of  any  vessel  owned 
in  whole  or  in  part  by  a  citizen  of  the  United  States,  or  by  a  citizen  of  a  foreign 
country,  shall  take  on  board  at  any  foreign  port  or  place,  other  than  foreign  con- 
tiguous territory  of  the  United  States,  passengers  otherwise  than  in  accordance 
with  the  provisions  of  the  act,  with  intent  to  bring  such  passengers  to  the  United 
States.  The  provisions  of  the  act  specify  that  the  number  of  passengers  carried 
shall  be  in  a  stated  proportion  to  the  tonnage  of  the  vessel ;  that  each  passenger 
shall  be  entitled  to  a  certain  amount  of  shiproom  for  himself  and  personal  bag- 
gage, which  in  no  case  shall  be  occupied  by  stores  or  other  goods ;  that  berths 
of  given  dimensions  shall  be  constructed;  certain  provisions  shall  be  made  for 
ventilation  of  that  part  of  the  vessel  occupied  by  those  other  than  cabin  pas- 
sengers ;  that  a  cooking-range  shall  be  constructed  in  size  proportioned  to  the 
number  of  passengers  carried;  that  supplies  of  a  kind  and  quantity  named,  and 
of  good  quality,  shall  be  laid  in  for  the  consumption  of  passengers;  that  the 
food  of  the  passengers  shall  be  properly  cooked  daily,  and  served  at  regular 

'  Act  1855,  chap.  213,  10  U.  S.  Stats,  at  Large,  715.  «  5§  425-2-4272. 


STATUTES  OF  THE  UNITED  STATES.  47i^ 


Act  of  March  3,  1855. 

hours ;  that  in  case  the  passengers  are  put  upon  short  allowance  by  reason  of  a 
failure  to  comply  with  the  provisions  of  the  act,  the  master  or  owner  of  the  vessel 
shall  pay  to  each  of  such  passengers  the  sura  of  .§3  for  each  day  while  upon  such 
short  allowance ;  that  the  master  of  the  vessel  may  maintain  good  discipline  and 
such  habits  of  cleanliness  among  passengers  as  will  tend  to  the  preservation  of 
health,  and  where  the  apartments  of  the  passengers  become  foul  from  any  cause, 
he  is  charged  with  the  duty  of  purifying  them  with  disinfectants. 

As  to  vessels  bound  from  any  port  in  the  United  States  to  any  port  or  place 
in  the  Pacific  Ocean  or  on  its  tributaries,  or  from  any  such  port  or  place  to  any 
port  in  the  United  States  on  the  Atlantic  or  its  tributaries,  including  vessels 
whose  passengers,  or  any  part  of  them,  shall  be  bound  from  or  to  any  of  those 
ports  or  places  by  waj-  of  any  overland  route  through  Mexico  or  Central  Amer- 
ica,—  these  are  declared  subject  to  the  foregoing  provisions,  except  so  much 
as  regards  food  and  water,  as  to  which  the  master  is  not  obliged  to  lay  in  any 
specified  supply,  but  to  furnish  "a  sufficient  supply  of  good  and  wholesome 
food,  properly  cooked,"  under  the  same  penalty  for  putting  passengers  upon  a 
short  allowance. 

By  the  same  act  it  is  made  the  duty  of  the  master  of  any  vessel  arriving  in 
the  United  States  from  any  foreign  place  whatever  to  deliver  to  the  collector  of 
the  district  in  which  it  arrives  a  list  of  all  the  passengers  taken  on  board,  with 
stated  queries  as  to  each  passenger  answered,  and  further  to  set  forth  the  num- 
ber which  have  died  on  the  voyage,  which  list  shall  be  verified  by  the  oath  of 
such  oflacer.  For  each  of  such  passengers  as  have  died  on  the  voj'age  by  natural 
disease,  being  above  the  age  of  eight  years,  the  master,  owner,  or  consignee 
is  bound  to  pay  the  collector  the  sum  of  SIO,  which  money  is  devoted  to  the 
care  and  protection  of  sick,  indigent,  or  destitute  emigrants. 

Having  already  exceeded  the  space  which  we  had  intended  to  devote  to  this 
subject,  we  will  pass  to  a  review  of  the  decisions  which  have  been  rendered 
upon  the  statutes  to  which  we  have  alluded  in  the  foregoing.  In  another  con- 
nection we  found  it  convenient  to  briefly  notice  certain  of  these  statutes,  and  to 
avoid  iteration  will  not  discuss  the  effect  of  cases  there  stated. i 

(4.)  Review  of  Cases  construing  the  foregoing  Acts. —  (a.)  The  Act  of  March  2 
1819.  —  Under  the  act  of  1819,*  a  vessel  was  deemed  forfeited  to  the  United 
States  if  the  number  of  persons  transported  exceeded  the  proportion  of  two  to 
every  five  tons  of  the  vessel's  tonnage,  by  twenty.  In  estimating  the  number  of 
passengers  under  the  act,  no  deduction  was  made  for  children  or  persons  not 
paying ;  but  those  employed  in  navigating  the  vessel  were  not  included.' 

(p.)  The  Act  of  March  3,  1855.  —  The  provisions  of  the  second  section  of  the 
act  of  1855,*  in  relation  to  the  number  and  arrangement  of  berths,  have  been  con- 
strued as  having  no  application  to  steamships.*  Under  this  same  statute,*  a 
mate  who  is  appointed  master  at  a  foreign  port,  and  leaves  the  port  with  intent 
to  bring  certain  passengers  to  the  United  States,  and  does  bring  them  in  excess 

1  ^n<e,  p.  222,  §  U.  1847,    chap.    16,   9   U.    S.    Stats,    at    Large  ^ 

2  Chap.  46,  §  2,  3  U.  S.  Stats,  at  Large,  488.  127). 

3  United    States  v.  The  Louisa  Harbara,  *  Chap.  213, 10  U.  S.  Stats,  at  Large,  715. 
Gilp.  332.    See    also  United    States   v.  The  ''  The  Manhattan,  2   Ben.  88;  «.  c.  7  Int. 
Neurea,  19  How.  92  (construing  the  act  of  Rev.  Roc.  28.                                  «  8  !• 


480  CARRIERS    OF    PASSENGERS    BY   WATER. 


Notes. 


of  the  number  permitted  by  that  statute,  is  liable  to  the  fine  imposed  on  masters, 
though  the  agreement  with  the  passengers  was  made  bj-  the  former  master,  if  the 
defendant  had  knowledge  of  the  facts,  and  opportunity  to  annul  the  illegal  con- 
tract before  leaving  the  foreign  port.'  But  the  mere  intention  to  violate  the  law, 
formed  in  a  foreign  country,  and  not  completed  by  illegal  importation,  is  insuffi- 
cient to  produce  conviction. ^ 

(c.)  The  Act  of  July  7,  1838,  and  August  30,  1852.  — It  was  stated  by  Mr. 
Justice  Nelson,  in  a  leading  case,  that  it  was  gross  negligence  ^  not  to  comply 
with  the  provision  of  the  act  of  1838*  requiring  steam-vessels  to  provide  as  a 
part  of  their  necessaiy  furniture  a  suction-hose  and  fire-engine,  and  hose  suit- 
able to  be  worked  in  case  of  tire,  and  to  carry  the  same  on  every  trip  in  good 
order ;  and  further,  that  iron  rods  or  chains  should  be  employed  and  used  in  the 
navigation  of  steamboats,  instead  of  wheel  or  tiller  ropes. 

The  provision  of  this  act^  making  the  bursting  of  a  boiler,  or  other  injurious 
■escape  of  steam,  prima  facie  evidence  of  negligence  on  the  part  of  the  defendant, 
in  an  action  for  such  injuries,  has  received  the  attention  of  the  United  States 
courts  in  two  cases.  In  Steamboat  New  World  v.  King,^  an  explosion  took 
place  upon  one  of  two  boats  engaged  in  a  race  for  patronage.  Curtis,  J.,  said 
in  this  case :  "  When  a  disastrous  explosion  has  occurred  in  such  a  strife,  this 
court  cannot  treat  the  evidence  of  those  engaged  in  it,  and  prima  facie  respon- 
sible for  its  consequences,  as  sufficient  to  disprove  their  own  negligence,  which 
the  law  presumes."'  In  another  case.  Chase,  C.  J.,  said  upon  this  point:  "  To 
repel  the  inference  of  negligence  in  this  case,  then,  there  must  be  such  clear 
proof  of  care  and  vigilance  as  will  exclude  any  reasonable  belief  that  there  was 
any  negligence  whatever  on  the  part  of  the  owners,  or  any  of  their  employees, 
which  contributed  to  the  explosion."^ 

The  provision  under  discussion  was  not  impliedly  repealed  by  the  thirtieth 
section  of  the  act  of  1852.*  The  averment  of  a  strict  compliance  on  the  part  of 
the  proprietors  of  steamboats  with  all  the  requirements  of  the  act,  without 
averring  care  and  denying  negligence,  is  not  a  good  defence  to  the  allegation  of 
loss  by  an  explosion  caused  by  negligence.'"  The  act  of  1852  did  not  exempt  the 
owners  and  master  of  a  steam-vessel,  and  the  vessel,  from  liability  for  injuries 
caused  by  the  negligence  of  its  pilot  or  engineer,  but  made  them  liable  for  all 
damages  sustained  by  a  passenger  or  his  baggage  from  any  neglect  to  comply 

1  United  States  v.  Morton,  1  Low.  179.  8  The  Highland  Light,  Chase's  Dec  150, 

2  United  States  v.  The  Anna,  2  Am.  L.  Reg.       153. 

421.  9  Chap.  106,  10  U.  S.  Stats,  at  Large,  61. 

3  New  Jersey  Steam  Nav.  Co.  v.  Mer-  Curran  r.  Cheeseman,  1  Cin.  Superior  Ct.  52; 
chants'  Bank,  6  How.  344,  385.  To  the  same  Steamboat  New  World  v.  King,  16  How.  469, 
effect  is  the  frequently  quoted  language  of  ante,  p.  175.  The  provisions  of  the  thirtieth 
Mr.  Justice  Grier  in  the  leading  case  of  section  of  the  act  of  1S52  are  almost  iden- 
Phila.  etc.  R.  Co.  v.  Derby,  14  How.  468,  486;  tical  with  those  of  the  forty-third  section  of 
3  c.  ante,  p.  31.  See  also  the  approval  of  the  act  of  1871  (U.  S.  Rev.  Stats.,  §  4493), 
Mr.  Justice  Curtis,  in  Steamboat  New  World  which  is  set  out  at  length  in  a  previous 
V.  King,  16  How.  469,  474,  ante,  p.  175.  chapter  of  this  book.    See  p.  223,  ante. 

*  Chap.. 191,  §  9,  5  U.  S.  Stats,  at  Large,  304,  w  Curran  v.  Cheeseraan,  supra;  Caldwell 

306.                                                6  §  13.  V.  New  Jersey  Steamboat  Co.,  47  N.  T.  282, 

6  16  How.  469,  ante,  p.  175,  292 ;  CarroU  v.  Staten  Island  B.  Co.,  58  N.  Y. 

'  16  How.  477.  126, 141. 


STATUTES    OF    THE    UNITED    STATES.  481 


Act  of  July  4,  1864. 

with  the  pi'ovisions  of  the  law,  uo  matter  where  the  fault  might  lie;  and  in 
addition  to  this  remedy,  any  person  injured  by  the  negligence  of  the  pilot  or 
engineer  might  have  his  action  directly  against  those  officers. ' 

The  provision  of  the  act  of  1838, '■'  requiring  steamboats  transporting  passen- 
gers to  operate  under  a  license  for  this  purpose,  was  held  to  have  been  violated 
by  a  propeller  (which  was  usually  engaged  in  and  about  a  harbor  as  a  tug-boat 
exclusively)  carrying  passengers  for  hire  upon  a  single  trip,  without  the  authority 
of  such  a  license.  The  exception  contained  in  the  act  of  Congress  of  1852 ' 
was  held  to  authorize  the  carriage  of  passengers  without  a  license  only  while 
employed  in  the  legitimate  business  of  towing,  etc. ;  but  not  where  the  boat 
leaves  that  business  for  the  purpose  of  transporting  passengers.*  A  contrary 
conclusion  was  reached  in  another  case.^ 

The  penalty  provided  by  the  act  of  1838  ^  for  transporting  goods,  wares,  and 
merchandise  on  vessels  not  inspected  was  not  embraced  in  the  act  of  1852.' 
The  whole  object  and  scope  of  this  last  act  was  to  provide  for  the  better  security 
of  the  lives  of  passengers,  and  it  provided  a  full  and  perfect  system  for  the  in- 
spection of  the  hulls  and  boilers  of  vessels  propelled  in  whole  or  in  part  by 
steam,  and  carrying  passengers.  Therefore  it  was  held  that  such  a  vessel  was  not 
liable  to  the  penalty  mentioned  for  transporting  goods,  wares,  and  merchandise 
without  inspection  of  the  hull  and  boilers,  the  provision  of  the  earlier  act  in 
this  particular  being  inconsistent  with  and  repealed,  by  implication,  by  the  later 
act.*  Neither  was  a  steamboat  employed  in  transporting  passengers  between 
ports  in  the  same  State  liable  to  the  penalty  prescribed  by  the  act  of  1852,  such 
a  vessel  being  exclusively  within  and  subject  to  State  regulations  and  control." 
Steamers  used  as  ferry-boats  were  in  express  terms  exempted  from  the  operation 
of  the  act  of  1852. lo 

(d.')  The  Act  of  July  4,1864.  —  The  following  provision  of  an  act  of  Con- 
gress 1'  was  held  to  be  imperative,  and  a  strict  compliance  with  its  demands 
necessary:  "That  the  secretary  of  the  treasury  shall  cause  to  be  pi'epared  a 
synopsis  of  such  of  the  laws  relating  to  the  carriage  of  passengers  an,d  their 
safety  on  vessels  propelled  in  whole  or  in  part  by  steam  as  he  shall  think  expe- 
dient, and  have  the  same  printed  in  convenient  form  to  be  framed  under  glass, 


1  Sherlock   v.   Ailing,  93  U.    S.   99.    The  8  United  States  v.  The  Sun,  1  Am.  L.  Reg. 

forty-third  section  of  the  act  of  1871  {ante,  (N.  S.)  277. 

p.  223;  U.  S.  Rev.  Stats.,  §  4493)  is,  as  we  have  »  United  States  v.  The  Seneca,  1  Am.  L. 

previously  stated,  almost  identical  with  the  Reg.    (n.    s.)    281;   United    States    v.  The 

thirtieth  section  of  the  act  of  1852,  and  the  James    Mon-ison,    Ncwb.  Adm.  241;    Uni- 

same  construction  has  been  put  upon  it  as  ted   States    v.  The   William   Pope,  id.  256; 

upon  the  latter  act  in  the  case  just  noticed.  United   States   v.  The    Bright    Star,  7  Int. 

Brown  v.  The  D.  S.  Cage,  1  Woods,  401.  Rev.  Rec.  179;  The  Thomas  Swan,  6  Ben.  42. 

s  §  2.  But  see  The  Daniel  Ball,  10  Wall.  557;  War- 

8  Act  1852,  chap.  106,  §  42,  10  U.  S.  Stat-,  at  ing  v.  Clark,  5  IIow.  441,  465,  per  Wayne,  J.; 

Large,  61,  75.  Bradley  v.  Northern  Transp.  Co.,  15  Ohio  St. 

<  United   States   v.  The  Echo,  4  Blatchf.  553,  5.57. 

446;  8.  c.  20  How.  Pr.  517;  United  States  v.  ">  chap.  lOG,  §  42, 10  U.  S.  Stats,  at  Large, 

The  Thomas  Swan,  9  Law  Rep.  (n.  s.)  201.  75;  Elizabethport  etc.  Ferry  Co.  v.  United 

s  United    States   v.  The    Ottawa,    Newb.  States,  5  Blatchf.  198;  The  Sylph,  4  Blatchf. 

Adm.  .536.    See  also  The    Morning   Star,  4  24. 

Biss.  62.                                    «  §  2.  "  Act  1861,  chap.  249,  §  8, 13  U.  S.  Stats,  at 

'  Chap.  100, 10  U.  S.  Stats,  at  Large,  6L  Large,  390,  391. 

31 


482  CARRIERS    OF   PASSENGERS    BY    WATER. 


Notes. 


and  give  to  any  such  vessel  two  copies,  on  application  of  its  owner  or  master, 
who  shall  without  unnecessary  delay  have  the  same  framed  under  glass,  and 
place  and  keep  them  in  conspicuous  places  in  such  vessel,"  etc.  Under  this  sec- 
tion it  was  held  to  be  no  defence  that  the  surveyor  of  the  port  was  not  supplied 
with  these  documents,  wherefore  the  steamer  put  out  without  them,  but  pro- 
cured one  while  upon  her  trip,  which  was  duly  posted  up.  The  owners  were 
bound  at  their  peril  to  apply  for  them  to  the  secretary  of  the  treasury ;  other- 
wise, proceeding  upon  the  voyage  as  they  did,  the  penalty  named  in  the  act  was 
incurred. 1 

(e.)  The  Act  of  July  25,  1866.  — It  was  provided  by  the  act  of  1866,"  "that 
cotton,  hemp,  hay,  straw,  or  other  easily  ignitible  commodity,  shall  not  be  carried 
on  the  decks  or  guards  of  any  steamer  carrying  passengers,  except  on  ferr3'-boats 
crossing  rivers,  and  then  only  on  the  sterns  of  such  boats,  unless  the  same  shall 
be  protected  by  a  complete  and  suitable  covering  of  canvas  or  other  proper  mate- 
rial to  prevent  ignition  from  sparks,  under  a  penalty,"  etc.  In  a  case  arising 
under  this  provision,  it  wa.s  held  that  hay  in  bales,  piled  up  in  the  engine  or  deck 
room,  back  of  the  engines,  and  surrounded  and  protected  by  a  tier  of  grain  in 
sacks  (made  of  burlaps,  or  jute  cloth)  on  each  side,  and  two  or  more  tiers  on 
each  end,  and  extending  from  the  floor  to  the  carlings  or  ceiling,  and  stripped 
with  plauk  to  make  the  sacks  steady,  was  a  sulHcient  compliance  with  this  stat- 
ute.^ 

(/.)  The  Act  of  February  28,  1871.— The  fourth  section  of  the  act  of  1871  * 
provides,  among  other  tlyngs,  that  no  refined  petroleum  shall  be  carried  as 
freight  on  any  steamer  carrying  passengers,  with  an  exception  not  necessary  to 
notice ;  but  the  section  provided  no  penalty  for  the  violation  of  the  provision. 
The  sixty-eighth  section  of  the  act  declares  that  the  penalty  for  the  violation  of 
any  provision  of  the  act  not  otherwise  specially  provided  for  shall  be  a  fine  of 
.$500,  one-half  for  the  use  of  the  informer.  These  sections  alone  clearly  would 
not  authorize  a  proceeding  in  rem.  The  proper  remedy  is  an  action  of  debt.^ 
The  first  section,  however,  makes  provision  for  the  licensing  and  enrolment  of 
steam-vessels,  and  concludes,  that  "  if  any  such  vessel  shall  be  navigated  with- 
out complying  with  the  terras  of  this  act,  the  o'mier  or  owners  tliereof  shall 
forfeit  and  pay,"  etc.,  "for  which  sum  the  steamboat  or  vessel  so  engaged  shall 
be  liable,  and  may  be  seized,"  etc.  The  remedy  contemplated  by  this  section 
cannot  by  implication  be  extended  to  the  fourth  section." 

1  The  Lewellen,  4  Biss.  156.  United  States,  13  Wall.  542;  Jacob  v.  TTnited 

2  Act  1866,  chap.  234,  §  5,  14  U.  S.  Stats.  States,  1  Brocken.  520;  Rex  v.  Robinson,  2 
at  Large,  227.  Burr.  803;  United  States  v.  Simms,  1  Crauch, 

3  Union  Insurance  Co.  v.  Shaw,  2  Dill.  14.  252. 

In  this  case  the  point  was  reaffirmed,  as  de-  ^  United  States  v.  The  C.  B.  Church,  1 

cided   by  Mr.  Justice  Catron  and  District  Woods,  275;  The  J.  D.  Parker,  23  Int.  Rev. 

Judge  Wells  in  this  circuit  in  1855,  to  the  Rec.  66.    To  the  same  effect  is  The  Highland 

elFect  that  the  tenth  section  of  the  act  of  Light,  Chase's  Dec.  150.    See  also  The  Can- 

1S52  (chap.  106,  10  Stats,  at  Large,  61,  69)  had  dace,  1  Low.  126,  where  it  is  held  that  §  15  of 

no  application  to  steamboats  plying  on  the  the  act  of  1855  (chap.  213,  10  U.  S.  Stats,  at 

Mississippi  River.  Large,  715,    720),    which    enacts  "that    the 

■*  Act  1S71,  chap.  100,  16  U.  S.  Stats,  at  amount  of  the  several  penalties  imposed  by 

Large,  440.  the  foregoing  provisions    *    *    *    shall  be 

=  Woods,  J.,  in  United  States  v.  The  C.  B.  liens  on  the  vessel  or  vessels  violating  these 

Church,  1   Woods,  275,  citing  StockweU  v.  provisions,"  does  not  apply  to  the  fine  im- 


STATUTES    OF    THE    UNITED    STATES. 


483 


Act  of  March  3,  1851. 


(5.)  Limitation  of  Cameras  Liability  by  the  Act  of  March  3,  1851.  —  We  have 
reserved  for  consideration  at  this  point,  and  apart  from  the  foregoing,  the 
statute  of  1851,'  because  the  object  of  this  statute  is  essentially  unlike  that  of 
any  of  the  foregoing  which  we  have  noticed.  This  statute  is  "An  act  to  limit 
tlie  liability  of  ship-owners,  and  for  other  purposes."  Its  pi'ovisions  are  sub- 
stantially incorporated  into  the  Revised  Statutes,  and  their  brevity  and  importance 
seem  to  justify  us  in  setting  tliem  out  at  length.^    In  the  course  of  his  opinion 


posed  on  the  master  by  §  1  of  that  act,  upon 
his  conviction  of  a  misdemeanor,  but  only 
to  the  civil  penalties  imposed  on  owners  as 
well  as  masters,  by  §§  2  and  8  of  the  act,  for 
a  violation  of  §§  2,  3,  4,  5,  and  7.  In  United 
States  V.  Laurel,  Newb.  Adm.  269,  it  was  held 
that  the  expression  in  §  2  of  the  act  of  1838 
(chap.  191,  5  U.  S.  Stats,  at  Large,  304),  "  for 
which  sum  or  sums  the  steamboat  or  vessel 
so  engaged  shall  be  liable,"  was  simply  used 
to  give  a  remedy  against  the  boat  by  libel, 
and  was  not  intended  to  give  a  lien,  ex- 
pressed or  implied. 

1  Chap.  43,  9  U.  S.  Stats,  at  Large,  635. 

2  "  §  4281.  If  any  shipper  of  platina,  gold, 
gold-dust,  silver  bullion,  or  other  precious 
metals,  coins,  jewelry,  bills  of  any  bank  or 
public  body,  diamonds  or  other  precious 
stones,  or  any  gold  or  silver  in  a  manufac- 
tured or  unmanufactured  state,  watches, 
clocks,  or  time-pieces  of  any  description, 
trinkets,  orders,  notes  or  securities  for  the 
payment  of  money,  stamps,  maps,  writings, 
title-deeds,  printings,  engravings,  pictures, 
gold  or  silver  plate  or  plated  articles,  glass, 
china,  silks  in  a  manufactured  or  unmanu- 
factured state,  and  whether  wrought  up  or 
not  wrought  up  with  any  other  material, 
furs,  or  lace,  or  any  of  them,  contained  in 
any  parcel  or  package,  or  trunk,  shall  lade 
the  same  as  freight  or  baggage,  on  any 
vessel,  without  at  the  time  of  such  lading 
giving  to  the  master,  clerk,  agent,  or  owner 
of  such  vessel  receiving  the  same  a  written 
notice  of  the  true  character  and  value 
thereof,  and  having  the  same  entered  on  the 
bill  of  lading  therefor,  the  master  and  owner 
of  such  vessel  shall  not  be  liable  as  carriers 
thereof  in  any  form  or  manner;  nor  shall 
any  such  master  or  owner  bu  li.ible  for  any 
such  goods  beyond  the  value  and  according 
to  the  character  thereof  so  notified  and 
entered. 

"  §  42S2.  No  owner  of  any  vessel  shall  be 
liable  to  answer  for  or  make  good  to  any 
person  any  loss  or  damage  which  may  hap- 
pen to  any  merchandise  what.sfiever,  which 
shall  be  shipped,  taken  in,  or  put  on  board 
any  suc'.i  vessel,  by  reason  or  by  means  of 
•ny  lire  happening  to  or  on  board  the  vessel. 


unless  sueh  fire  is  caused  by  the  design  or 
neglect  of  such  owner. 

"  §  4283.  The  liability  of  the  owner  of  any 
vessel,  for  any  embezzlement,  loss,  or  de- 
struction, by  any  person,  of  any  property, 
goods,  or  merchandise  shipped  or  put  on 
board  of  such  vessel,  or  for  any  loss,  dam- 
age, or  injury  by  collision,  or  for  any  act, 
matter,  or  thing,  loss,  damage,  or  forfeiture, 
done,  occasioned,  or  incurred,  without  the 
privity  or  knowledge  of  such  owner  or 
owners,  shall  in  no  case  exceed  the  amount 
or  value  of  the  interest  of  such  owner  in 
such  vessel  and  her  freight  then  pending. 

"  §  42S4.  Whenever  any  such  embezzle- 
ment, loss,  or  destruction  is  suffered  by  sev- 
eral freighters  or  owners  of  goods,  wares, 
merchandise,  or  any  property  whatever  on 
t'ae  same  voyage,  and  the  whole  value  of  the 
vessel  and  her  freight  for  the  voyage  is  not 
eufBcient  to  make  compensation  to  each  of 
them,  they  shall  receive  compensation  from 
the  owner  of  the  vessel  in  proportion  to 
their  respective  losses;  and  for  that  pur- 
pose the  freighters  and  [ownerl  [owners]  of 
the  property,  and  the  owner  of  the  vessel, 
or  any  of  them,  may  take  the  appropriate 
proceedings,  in  any  court,  for  the  purpose 
of  apportioning  the  sum  for  which  the 
owner  of  the  vessel  may  be  liable  among 
the  parties  entitled  thereto. 

"§4285.  It  shall  be  deemed  a  sufficient 
compliance  on  the  part  of  such  owner  with 
the  requirements  of  this  title  relating  to  his 
liability  for  any  embezzlement,  loss,  or  de- 
struction of  any  property,  goods,  or  mer- 
chandise, if  he  shall  transfer  his  interest  in 
such  vessel  and  freight,  for  the  benefit  of 
such  claimants,  to  a  trustee,  to  be  aiipointed 
by  any  court  of  competent  jurisdiction,  to 
act  as  such  trustee  for  the  person  who  may 
prove  to  be  legally  entitled  thereto;  from 
and  after  which  transfer  all  claims  and 
proceedings  against  the  owner  shall  cease. 

"§4286.  The  charterer  of  any  vessel,  in 
case  he  shall  man,  victual,  and  navigate 
such  vessel  at  his  own  exijcnse,  or  by  his 
own  i)ro(;iirenient,  shall  be  deemed  llic 
owner  of  sucli  vessel  williin  llie  niuauiiig 
of  the  provisions  of  this  title  relating  to  the 


484  CARRIERS    OF    PASSENGERS    BY    WATER. 


Notes. 


in  the  case  of  Bailroad  Company  v.  Lockwood,^  Mr.  Justice  Bradley  couciselj' 
summarized  tlie  provisions  of  this  act,  and  concluded  by  saying:  "  This  seems  to 
be  the  only  important  modification  of  previously  existing  law  on  the  subject, 
which  in  this  country  has  been  effected  by  legislative  interference.  And  by  this 
it  is  seen  that,  though  intended  for  the  relief  of  the  ship-owner,  it  still  leaves 
him  liable  to  the  extent  of  his  ship  and  freight  for  the  negligence  and  miscon- 
duct of  his  employees,  and  liable  without  limit  for  his  own  negligence."  ^ 

The  policy  of  this  act  is  explained  by  Mr.  Justice  Catron  in  the  leading  case 
of  Moore  v.  American  Transportation  Company:^  "Our  act  of  Congress,"  said 
he,  "of  March  3,  1851,  was  passed  to  put  our  commercial  marine  on  an  equal 
footing  with  that  of  Great  Britain;  so  that  the  increase  of  the  number  of  ships, 
and  the  navigation  of  them,  might  be  equally  encouraged.  That  competition  with 
British  shipping  was  the  object  of  Congress,  is  manifest  to  my  mind  from  the 
fact  that  the  provisions  of  our  statutes  correspond  to  British  statutes."  * 

(a.)  Scope  of  this  Act.  —  One  of  the  first  cases  arising  under  this  act  was 
that  of  Moore  v.  American  Transportation  Company.^  It  was  here  decided  that 
the  navigation  of  Lake  Erie,  and  also  of  all  the  other  lakes  in  connection  there- 
with, is  not  within  the  exception  to  this  act,  as  falling  within  the  words  "inland 
navigation."  fi  Mr.  Justice  Catron  dissented,  but  the  judgment  of  the  majority 
of  the  court  in  this  case  has  ever  since  been  adhered  to  as  the  proper  construction 
of  the  act.'' 

In  Walker  v.  Transportation  Company,^  the  terms  of  the  first  section  ^  of 
the  act  came  up  for  construction.  The  plaintiff  shipped  a  cargo  of  grain  at 
Chicago,  on  a  vessel  belonging  to  the  defendants,  to  be  delivered  at  Buffalo. 
The  vessel  caught  fire  and  the  grain  was  consumed.     The  company  set  up  as  a 

limitation  of  the  liability  of  the  owners  of  vessel,  shall  be  liable  to  the  United  States 

vessels;  and  such  vessel,  when  so  chartered,  in  a  penalty  of  one  thousand  dollars.    But 

shall  be  liable  in  the  same  manner  as   if  this  section  shall  not  apply  to  any  vessel  of 

navigated  by  the  owner  thereof.  any  description  whatsoever  used  in  rivers  or 

"  §  4287.    Nothing  in  the    five  preceding  inland  navigation, 

sections  shall  be  construed  to  take  away  or  "  §  42i59.    The  provisions  of  [this  title]  the 

alfect  the  remedy  to  which  any  party  may  seven  preceding   sections,  relating  to   the 

be  entitled  against  the  master,  officers,  or  limitation  of  the  liability  of  the  owners  of 

seamen,  for  or  on  account  of  any  embezzle-  vessels,  shall  not  apply  to  the  owners  of  any 

ment,  injury,  loss,  or  destruction  of  mer-  canal-boat,  barge,  or  lighter,  or  toanyves- 

chandise   or   property   put   on   board   any  sel  of  any  description  whatsoever  used  in 

vessel,  or   on  account  of   any  negligence,  rivers  or  inland  navigation." 

fraud,  or  other  malversation  of  such  master,  ^  17  Wall.  357;  s.  c.  ante,  p.  378. 

officers,    or   seamen,    respectively,    nor   to  ^  Id.  361.                            ^  24  How.  1, 40. 

lessen  or  take  away  any  responsibility  to  *  See  also  Walker  v.  Transportation  Co., 

which  any  master  or  seaman  of  any  vessel  3  Wall.   150,  152;    Carroll  v.   Staten   Island 

may  by  law  be  liable,  notwithstanding  such  R.   Co.,  58   N.   Y.  126,  142;    Chamberlain  r. 

master  or  seaman  may  be  an  owner  or  part-  Western  Transp.  Co.,  44  N.  Y.  005,  008. 

owner  of  the  vessel.  *  24  How.  1. 

"§4288.    Any  person  shipping  oil  of  vit-  «§  7;  Rev.  Stats.,  §  42811, SMpra.    This  point 

riol,  unslaked  lime,  inflammable   matches,  arose  in  an  earlier  case,  but  was  not  decided, 

or  gunpowder,  in  a  vessel  taking  cargo  for  The  Niagara  v.  Cordes,  21  How.  7. 

divers  persons  on  freight,  without  delivering  "  Walker  v.  Transportation   Co.,  3  Wall. 

at  the  time  of  shipment  a  note  fn  writing,  150;    Chamberlain    v.   Western  Transp.  Co., 

expressing  the  nature  and  character  of  such  44  N.  Y.  305. 

merchandise,  to  the  master,  mate,  officer,  s  3  Wall.  150. 

or  person  in  ch-rge  of  the  lading  of  the  *  Rev.  Stats.,  §  4282,  supra,  p.  483,  note. 


STATUTES  OF  THE  UNITED  STATES.  485 


Act  of  March  3,  1851 — Passenger's  Baggage. 

defence  to  the  pkihitiff' s  suit,  that  the  wheat  was  destroyed  by  a  fire  which  was 
not  caused  by  the  "design  or  neglect"  of  the  defendant.  Miller,  J.,  deliver- 
ing the  opinion  of  the  court,  held  this  to  be  a  good  defence.  "When  we  con- 
sider," said  he,  "that  the  object  of  the  act  is  to  limit  the  liability  of  owners  of 
vessels,  and  that  the  exception  is  not,  in  terms,  of  negligence  generally,  but  only 
of  negligence  of  the  owners,  it  would  be  a  strong  construction  of  the  act,  in 
derogation  of  its  general  purpose,  to  hold  that  this  exception  extends  to  the 
officers  and  crews  of  the  vessels  as  representing  the  owners."  ^  So,  where  a  libel 
was  filed  to  recover  damages  for  injuries  to  goods  by  fire  caused  by  the  alleged 
negligence  of  the  master  who  was  also  a  part-owner,  but  not  by  the  design  or 
neglect  of  the  other  part-owners,  it  was  held  that  such  part-ownei's  personally, 
and  also  their  interests  in  the  vessel,  were  exempted  from  liability .^ 

(p.)  Application  to  Passenger- Carriers  in  respect  of  Passengers^  Baggage. — 
A  most  interesting  question  in  connection  with  the  subject  of  this  book  is 
whether  carriers  of  passengers  can  take  advantage  of  the  provisions  of  this 
act  in  relation  to  their  liability  for  the  safe  transportation  of  the  baggage  of  their 
passengers.  Upon  this  point  we  find  no  adjudication  in  the  Federal  courts.  The 
question,  however,  has  been  considered  in  two  of  the  most  eminent  State  juris- 
dictions, and  contraiy  conclusions  have  been  reached.  In  Dunlap  v.  Interna- 
tional Steamboat  Company,^  the  action  was  tort  for  the  value  of  a  valise  and  its 
contents,  lost  from  the  custody  of  the  defendants.  The  valise  contained  86  sov" 
ereigns  in  British  coin  and  8393  in  gold  coin  of  the  United  States  belonging  to 
the  plaintiff,  besides  other  coin,  the  ijroperty  of  a  companion.  It  did  not  appear 
that  any  notice  was  given  to  the  defendants,  or  to  any  of  their  agents  or  servants, 
that  the  valise  contained  gold,  or  any  article  of  peculiar  value.  The  second  sec- 
tion* of  the  act  was  set  up  in  defence  to  the  action.  It  was  held  that  the  statute 
had  no  application  to  the  case.  Bigelow,  C.  J.,  said:  "We  are  of  opinion  that 
the  provisions  of  the  United  States  Statute  of  1851,  chap.  43,  §  2,  on  which  the 
defendants  rely  in  bar  of  these  actions,  do  not  apply  to  contracts  entered  into 
with  masters  or  owners  of  vessels  for  the  carriage,  by  water,  of  passengers  with 
their  luggage.  The  manifest  design  of  the  statute  was  to  restrict  the  liability  of 
common  carriers  by  water,  of  certain  kinds  of  goods  and  merchandise.  In  regard 
to  these  it  changes  the  rule  of  the  common  law.  For  this  reason,  its  provisions 
are  not  to  be  extended  by  implication.  Giving  to  the  phraseology  of  the  statute 
its  fair  and  full  meaning,  without  enlarging  it  by  construction,  it  indicates  quite 
clearly  that  its  framers  intended  to  embrace  only  that  class  of  contracts  where 
goods  are  shipped  and  laden  on  board  of  vessels  to  be  transported  as  freight,  for 
Avhich  bills  of  lading  are  usually  given  by  the  carrier  and  received  by  the  shipper, 
and  form  the  evidence  of  the  terms  on  which  the  contract  of  carriage  is  to  be 
performed.  The  contracts  on  which  the  plaintiffs  rely  are  not  within  the  pro- 
visions of  the  statute."' 

The  contrary  conclusion  was  reached  by  the  Court  of  Appeals  of  New  York  in 
Chamberlain  v.  Western  Transportation  Company.^  The  action  was  brought  by  the 
plaintiff  as  assignee,  to  recover  for  the  value  of  some  passengers'  baggage  de- 
stroyed with  the  defendant's  vessel.    The  cause  of  the  fire  was  unknown.     The 

»  3  Wall.  153.    See  also  Chisholm  v.  North-  <  Rev.  Stats.,  §  42S1,  mpra,  p.  4S3,  note, 

ern  Transp.  Co.,  61  Barb.  .363.  ^  98   Mass.  375.    To    Iho    same    effect   is 

=  Keene  v.  The  AVhistler,  2  Sawyer,  348.  Brock  v.  Gale,  14  Fla.  523,  535. 
3  98  Mass.  371.  <>  44  N.  Y.  305. 


486  CARRIERS    OF    PASSENGERS    BY    WATER. 


Notes. 


defendant  claimed  to  be  protected  against  any  recovery  in  this  action  by  virtue 
of  the  first  section  of  the  act,'  but  the  plaintiff  contended  that  the  baggage  in 
question  was  not  "goods  or  merchandise"  within  the  meaning  of  this  section, 
and  hence  that  the  defendant  was  under  the  common-law  liability.  The  trial 
court  directed  a  verdict  for  the  plaintiff,  subject  to  the  opinion  of  the  general 
term,  which  subsequently  ordered  judgment  for  the  plaintiff.^  In  the  Court  of 
Appeals  this  judgment  was  reversed.  Earl,  C.  J.,  said:  "This  is  not  in  any 
sense  a  penal  statute,  nor  is  it  in  any  way  derogatory  to  natural  right,  and  hence 
I  know  of  no  rule  of  law  that  requires  that  it  should  be  strictly  construed.  It  is 
true  that  it  changes  the  common  law,  but  there  can  be  no  reason  for  applying 
the  rule  of  strict  construction  to  the  vast  body  of  statute  laws  which  change  the 
common  law.  The  prior  law,  whether  it  be  statute  or  common  law,  is  to  pre- 
vail unless  the  subsequent  statute,  by  a  fair  or  proper  construction,  repeals  or 
modifies  it.  This  statute  is  rather  a  remedial  statute.  It  was  enacted  to  remedy 
the  rigor  of  the  common  law,  which  it  was  deemed  unwise,  on  grounds  of  public 
policy,  to  continue.  It  should  therefore  be  construed,  if  not  liberally,  at  least 
fairly,  to  carry  out  the  policy  which  it  was  enacted  to  promote."  ^  The  learned 
judge  then  proceeded  to  apply  familiar  rules  of  coustruction  deduced  from  adju- 
dicated cases,*  and  examining  the  act  as  a  whole,  concluded  that  "there  is  no 
reason  for  believing  that  the  law-makers  meant  by  the  language  used  in  the  sub- 
sequent sections  to  include  baggage,  and  not  to  include  it  in  the  words  'any 
goods  or  merchandise  whatsoever,'  used  in  the  first  section."^  A  similar  con- 
clusion was  reached  in  a  case  arising  under  the  English  Merchants'  Shipping  Act 
of  1854.« 

In  a  late  case  before  the  Supreme  Court  of  the  United  States,  an  effort  was 
made  to  bend  §  4281'  of  the  Revised  Statutes  to  an  exti'aordiuary  purpose,  ^iz., 
to  exempt  a  railroad  company  from  liability  for  the  theft  of  valuable  laces  from 
the  trunk  of  a  passenger  while  in  the  charge  of  the  company.  These  laces  con- 
stituted a  part  of  the  wearing  apparel  of  the  passenger,  and  were  properly  a  part 
of  her  baggage.  The  company  had  no  knowledge  of  their  being  in  the  trunk, 
and  no  extra  compensation  was  paid  for  the  carriage  of  the  trunk.  The  court 
held  that  the  section  in  question  had  no  application  whatever  to  the  case,  but 
referred  alone  to  the  liability  of  carriers  by  water  who  transport  goods  and  mer- 
chandise of  the  kind  designated.^ 

(c.)  Jurisdiction  in  certain  Cases.  —  A  question  of  jurisdiction  has  at  different 

1  Rev.  Stats.,  §  4282,  supra,  p.  483,  note.  «  17  &  ig  vict.,  c.  101,  §  503.    The  language 

*  See  45  Barb.  218.  of    this    section,   corresponding   to    §  1    of 
8  44  N.  Y.  309.  the  act  of  1851,  is  as  follows:  "No  owner  of 

*  Citing  Maillard  v.  Lawrence,  16  How.  any  sea-going  ship,  or  share  therein,  shall  be 
251;  United  States  v.  Coombs,  12  Pet.  72;  liable  to  make  good  any  loss  or  damage  that 
James  V.  Patten,  6  N.  Y.  9;  Pillow  v.  Bush-  may  happen  without  his  actual  fault  or  priv- 
nell,  5  Barb.  156;  United  States  t'.  Freeman,  ity,  of  or  to  any  of  the  following  things 
3  How.  556,  565;  Waller  v.  Harris,  20  Wend.  (that  is  to  say) :  (1.)  Of  or  to  any  goods,  mer- 
555-561.  chandise,  or  other  things  whatsoever  taken 

5  It  will  be  noticed  that  in  the  Revised  in  or  put  on  board  any  such  ship,  by  reason 

Statutes    the    language    of   this    section    is  of  any  fire  happening  on  board  such  ship." 

amended  so  as  to  read,  "  any  merchandise  McDougall  v.  Allan,  6  Lower  Canada  Jur. 

whatever."    It  would  seem  that  with    the  233.  ^  Sujyra,  p.  483,  note, 

omission  of  the  word  "goods,"  this  section  s  New  York  etc.  R.  C.>.  v.  Fraloff,  9  Cent, 

cannot  bear  the  construction  adopted  iu  this  L.  J.  432;  s.  c.  8  Reporter,  801;  20  Alb.  L.  J. 

case.  409 ;  post,  p.  502. 


STATUTES    OF    THE    UNITED    STATES.  487 


Jurisdiction  in  Certain  Cases. 

times  arisen  under  this  act.  Sect.  3  of  tlie  act^  limits  tlie  liability  of  ship- 
owners to  the  value  of  the  ship  and  freight  then  pending.  Sect.  4  of  the  act  ^ 
provides  the  mode  to  be  adopted  by  the  ovraer,  in  case  the  injury  is  to  several, 
and  the  value  of  the  ship  and  freight  then  pending  is  insufficient  to  compensate 
all  in  full,  to  stay  actions  at  common  law  in  the  State  courts.  In  such  cases  the 
remedy  cannot  be  afforded  by  a  court  of  common  law,  which  has  not  the  methods 
or  the  machinery  whereby  the  act  can  be  administered.^  But  no  objection  can  be 
taken  to  the  jurisdiction  of  a  common-law  court  where  the  injury  is  sustained 
by  a  single  party,  and  the  amount  of  damage  is  less  than  the  value  of  the  ship 
and  pending  freight.* 

Other  cases,  illustrative  of  the  construction  to  be  put  upon  the  sections  of  the 
act  referring  to  collisions,  and  therefore  not  properly  within  the  scope  of  this 
note,  will  be  added  without  extended  notice.^ 

»  Rev.  Stats.,  §  4283,  supra,  p.  4S3,  note.  ^  Thorp  v.  Hammond,  12  Wall.  409;  Nor- 

2  Rev.  Stats.,  §§  42S4,  4285,  supra,  p.  483,  n.  wich  Co.  v.  Wright,  13  Wall.  104;   The  City 

3  Chisholm  v.  Northern  Transp.  Co.,  61  of  Hartford  and  The  Unit,  11  Blatchf.  290; 
Barb.  863.  Place  v.  The  City  of  Norwich,  1  Ben.  89 ; 

<  Dougan  v.  Champlain  Transp.  Co.,  56  N.       AUen  v.  Mackay,  1  Sprague,  219. 
Y.  1. 


CHAPTEE    XYL 

LIABILITY    OF    CARRIER    IN    RESPECT    OF    PASSENGER'S 

BAGGAGE. 


Leadixg  Cases  :  1.  HolUster  v.  Nowlen.  —  Carriers  of  passengers  are  respon- 
sible as  common  carriers  for  the  baggage  of  passengers  — 
Power  to  limit  this  common-law  liability  by  notice  or  con- 
tract—  Regulations  as  to  carriage  of  baggage. 
2,  Neio  York  Central  and  Hudson  Biver  Bailroad  Company  v. 
Fraloff.  —  The  same  subject  —  What  is  baggage  —  Value 
of  baggage  —  Fraud  of  passenger. 

Notes  :     §  1 .  What  is  baggage  —  A  mixed  question  of  law  and  fact. 

2.  Articles  which  cannot  be  considered  as  baggage. 

3.  Articles  which  are  comprehended  under  the   term  "bag- 

gage." 

4.  Custody  of  the  baggage  —  "Booking"  and  "checking." 
6.  Baggage  under  the  personal  control  of  the  passenger  — 

Theft  of. 

6.  Articles  received  in  other  capacity  than  as  a  carrier. 

7.  A  question  of  respondeat  superior. 

8.  The  contract  in  respect  of  the  carriage  of  baggage  —  A 

can-ier  of  passengers  is  responsible  as  a  common  carrier 
for  the  safe  carriage  of  baggage. 

9.  Responsibility  for  extra  baggage. 

10.  Baggage  of  gratuitous  passenger. 

11.  Lien  upon  baggage  for  fare.  • 

12.  Carriers  of  baggage  only. 

13.  Liability  of  carrier  for  loss  of  baggage,  how  limited  by  con- 

tract. 

14.  Liability  of  carrier  for  loss  of  baggage,  how  limited  by 

notice  —  English  Railway  and  Canal  Traffic  Act. 
16.  What  will  constitute  notice. 

16.  An  exception  under  the  Railway  and  Canal  Traffic  Act — 

Excursion  trains. 

17.  Regulations  of  the  carrier  in  respect  of  baggage  —  Notice 

to  passenger. 

18.  Liability  of  the  carrier  limited  by  statute. 

19.  Duties  of  the  passenger  in  respect  of  baggage   during 

transit. 

20.  Liability  of  sleeping-car  companies  for  loss  of  baggage 

and  valuables. 
(488) 


passenger's  baggage.  489 


Hollister  v.  Nowlen. 

Notes:     §  21.  Duty  of  the  carrier  to  deliver  baggage  safely. 

22.  Duty  of  carrier  to  afford  facilities  for  delivery  and  storage 

of  baggage  at  destination. 

23.  Duty  of  the  passenger  to  remove  his  baggage  on  arrival  at 

destination. 

24.  Delivery  of  baggage  upon  forged  order. 

25.  Measure  of  damages  in  action  for  loss  of  baggage. 

26.  Procedure  —  Parties  to  action. 

27.  Pleading  —  Form  of  action. 

28.  Competency  of  plaintiff  to  show  the  contents  of  baggage. 

29.  Burden  of  proof. 

30.  Bes  gestae. 


1.  CARRIERS   OF  PASSENGERS   RESPONSIBLE  AS   COMMON   CARRIERS 

for  the  baggage  of  passengers —  power  to  limit  com- 
mon-law liability  by  notice  or  contract  —  regulations 
as  to  carriage  of  baggage. 

Hollister  v.  Nowlen.* 

Supreme  Court  of  Judicature  of  New  York,  1838. 

Hon.  Samuel  Nelson,  Chief  Justice. 
"     Greene  C.  Bronson,  \  j  ■, 
"     esek  cowen,  j 

1.  Liabilities   of  Carriers  of  Passengers   in   respect   of  Passenger's  Bag-gage.— 

Stage-coach  proprietors  and  other  carriers  by  land  and  water  are  answerable  as  com- 
mon carriers  for  the  baggage  of  passengers.  They  are  regarded  as  insurers  thereof, 
and  must  answer  for  any  loss  not  occasioned  by  the  act  of  God  or  the  public  enemies. 

2.  Common-Law  Liability,  how  restricted.  —  If  a  carrier  can  restrict  his  common-law 

liability,  it  can  only  be  by  an  express  contract.  Such  a  contract  cannot  be  implied  or 
inferred  from  a  general  notice,  though  brought  home  to  the  knowledge  of  the  owner  of 
the  property.  Stage-coach  proprietors  and  other  common  carriers  cannot  restrict  their 
common-law  liability  by  a  general  notice  that  the  "baggage  of  passengers  is  at  the 
risk  of  the  owners." 

8.  Carrier  may  demand  Statement  of  Value  of  Baggage,  and  Premium  in  propor- 
tion thereto.  —  A  common  carrier,  like  other  insurers,  may  demand  a  premium  pro- 
portioned to  the  hazards  of  his  employment;  he  may,  therefore,  require  the  owners  of 
goods  to  give  such  Information  as  will  enable  him  to  decide  on  the  proper  amount  of 
compensation  for  his  services  and  risk,  and  the  degree  of  care  necessary  to  the  dis- 
charge of  the  trust.  If  the  owner  gives  an  an.swer  false  in  any  material  point,  the 
carrier  will  be  absolved  from  the  consequences  of  a  loss  not  occasioned  by  negligence 
or  misconduct,  but  in  such  a  case  actual  notice  of  the  requirements  of  the  carrier  must 
be  brought  home  to  the  knowledge  of  the  owner  of  the  goods. 

This  was  an  action  against  the  defendant  as  a  common  carrier  for  the 
loss  of  the  plaintiff 's  trunk  and  contents.     A  case  was  agreed  on  be- 

*  Reported,  19  Wend.  234. 


490  passenger's  baggage. 

Hollister  v.  Nowlen. 

tween  the  parties,  stating  the  following  facts:  The  defendant  was  a 
member  of  a  company  the  proprietors  of  three  daily  lines  of  stage- 
coaches running  between  Canandaigna  and  Buffalo,  one  of  which  was 
called  the  Telegraph  Line.  The  defendant  resided  at  Avon,  and  with 
his  teams  and  coaches  ran  that  part  of  the  route  lying  between  Avon 
and  Le  Roy.  East  of  Canandaigua  the  line  was  owned  by  other  pro- 
prietors. The  plaintiff  resided  at  Utica,  and  at  that  place  entered  as  a 
passenger  in  the  Telegraph  Line  for  Buffalo.  His  baggage  consisted  of 
a  trunk,  containing  clothing  to  the  value  of  $116.75.  The  fare  was 
duly  paid.  On  July  20,  1833,  before  daylight  in  the  morning,  the 
plaintiff  left  Avon  in  the  defendant's  coach  on  his  way  to  Buffalo. 
The  trunk  was  placed  in  the  boot  behind  the  coach,  which  was  carefuU}- 
secured  by  strong  leather  covering,  fastened  with  strong  leather  straps 
and  buckles,  and  was  made  secure  against  any  loss  except  b}'^  violence. 
After  proceeding  about  three  miles,  it  was  discovered  that  the  straps 
confining  the  cover  to  the  boot  had  been  cut,  and  the  plaintiff 's  trunk 
with  its  contents  had  been  feloniously  stolen  and  carried  off.  There 
was  no  negligence  on  the  part  of  the  defendant  or  his  servants  in  rela- 
tion to  the  trunk,  further  than  may  be  implied  from  the  facts  above 
stated.  The  plaintiff  left  the  stage,  went  back  to  Avon  and  reported 
his  loss ;  and  the  defendant  offered  a  reward,  and  made  all  proper 
efforts  for  the  recovery  of  the  property,  but  without  success. 

The  Telegraph  Line  was  establislied  in  1828.  A  public  notice  that 
baggage  sent  or  carried  in  the  Telegraph  Line  tvould  be  at  the  risk  of 
the  oivner  thereof,  printed  on  a  large  sheet,  had  been  uniformly  kei)t 
placarded  in  most  of  the  stage-offices  and  pubUc-houses  from  Albany  to 
Buffalo;  and  particularly  such  notice  had  been  continually  affixed  up 
in  the  stage-office  and  principal  public-houses  at  Utica,  where  tlie 
plaintiff  had  resided  for  the  last  three  years  before  the  trunk  was  lost. 
It  was  stipulated  that  should  the  court  be  of  opinion  that  the  plaintiff 
was  entitled  to  recover,  judgment  should  be  entered  in  his  favor  for 
$116.75,  and  interest  from  July  20,  1833,  besides  costs. 

Tliis  cause  was  twice  argued,  the  first  time  in  July  term,  1835,  by 
C.  P.  Kirkland,  for  the  plaintiff,  nnd  by  M.  T.  Reynolds,  for  the 
defendant;  and  the  second  time  in  July  term,  1837,  by  G.  P.  Kirkland. 
for  the  plaintiff,  and  bj  P.  Gridley,  for  the  defendant.  At  this  ten;i 
the  following  opinion  was  delivered :  — 

By  the  Court,  Bronson,  J.  —  Stage-coach  proprietors  and  other  car- 
riers by  land  and  water  incur  a  very  different  responsibility  in  relation 
to  the  passenger  and  his  baggage.  For  an  injury  to  the  passenger  they 
are  answerable  onl}"^  where  there  has  been  a  want  of  proper  care,  dili- 


LIABILITY    FOR    LOSS    OF.  491 

Supreme  Court  of  Judicature  of  New  York. 

gence,  or  skill ;  but  in  relation  to  baggage  they  are  regarded  as  insur- 
ers, and  must  answer  for  any  loss  not  occasioned  by  inevitable  accident 
or  the  public  enemies.  As  the  point,  though  made,  was  not  discussed 
by  the  defendant's  counsel,  I  shall  content  myself  with  referring  to  a 
few  cases  to  prove  that  they  are  liable  as  common  carriers  for  the  loss 
•or  injury  of  the  property  of  the  passenger. ^  The  fact  that  the  owner  is 
present,  or  sends  his  servant  to  look  after  the  property,  does  not  alter 
the  case. 2  Chambre,  J.,  said:  "It  has  been  determined  that  if  a  man 
travel  in  a  stage-coach  and  take  his  portmanteau  with  him,  though 
he  has  his  eye  upon  the  portmanteau,  yet  the  carrier  is  not  absolved 
from  his  responsibility,  but  will  be  liable  if  the  portmanteau  be  lost." 
The  liability  of  a  carrier  is  like  that  of  an  innkeeper ;  and  it  was  said  in 
Cali/e's  Case,^  that  "  it  is  no  excuse  for  the  innkeeper  to  say  that  he 
delivered  the  guest  the  key  of  the  chamber  in  which  he  lodged,  and 
that  he  left  the  door  open,  but  he  ought  to  keep  the  goods  and  chattels 
of  his  guests  there  in  safety."  When  there  is  no  fraud,  the  fact  that 
the  owner  accompanies  the  property  cannot  affect  the  principle  on  which 
the  carrier  is  charged  in  case  of  loss. 

The  principal  question  in  the  cause  arises  out  of  the  notice  given  by 
the  coach  proprietors  that  baggage  carried  by  the  Telegraph  Line  looukl 
be  at  the  risk  of  the  owner;  and  the  first  inquiry  is  whether  there  was 
sufficient  evidence  to  charge  the  plaintiff  with  a  knowledge  of  the  notice. 
If  we  are  to  follow  the  current  of  modern  English  decisions  on  this 
subject,  it  cannot  be  denied  that  there  was  evidence  to  be  left  to  a  jury, 
and  upon  which  they  might  find  that  the  plaintiff  had  seen  the  notice. 
But  I  think  the  carriei',  if  he  can  by  any  means  restrict  his  liability,  can 
only  do  so  by  proving  actual  notice  to  the  owner  of  the  property.  I 
agree  to  the  rule  laid  down  by  Best,  C.  J.,  in  Brooke  v.  Pickivick,'^  decided 
in  1827,  when  tlie  courts  of  Westminster  Hall  had  commenced  retracing 
their  steps  in  relation  to  the  liability  of  carriers,  and  were  endeavoring 
to  get  back  on  to  the  firm  foundation  of  the  common  law.  He  said : 
"If  coach  proprietors  wish  honestly  to  hmit  their  responsibility,  they 
ought  to  announce  their  terms  to  every  individual  who  applies  at  their 
office,  and  at  the  same  time  to  place  in  his  hands  a  printed  paper  speci- 
fying the  precise  extent  of  their  engagement.  If  they  omit  to  do  this, 
they  attract  customers  under  the  confidence  inspired  by  the  extensive 
liability  which  the  common  law  imposes  upon  carriers,  and  then  endeavor 


'  Orange  County  Bank  v.  Brown,  9  Wend.  =  Robinson  v.  Duumore,  2  Bos.  «&  Pul.  418. 

85 ;  Camilen  etc.  U.  Co.  v.  Burke,  13  Wend.  a  8  Co.  fi3. 

Cll;  Brooke  v.  Pickwick,  4  Bing.  218;  Clark  i  4  Bing.  218. 
V.  Gray,  4  Esp.  177;  2  Kent's  Comm.  SOI. 


492  passenger's  baggage. 

HoUistei*  V.  Nowlen. 

to  elude  that  liability  by  some  limitation  which  they  have  not  been  at 
the  pains  to  make  known  to  the  individual  who  has  trusted  them." 

I  should  be  content  to  place  my  opinion  upon  the  single  ground  that 
if  a  notice  can  be  of  any  avail,  it  must  be  directly  brought  home  to  the 
owner  of  the  property,  and  that  there  was  no  evidence  in  this  case 
which  could  properly  be  submitted  to  a  jury  to  draw  the  inference  that 
the  plaintiff  knew  on  what  terms  the  coach  proprietor  intended  to  trans- 
act his  business.  But  other  questions  have  been  discussed,  and  there 
is  another  case  before  the  court  where  the  judge  at  the  circuit  thought 
the  evidence  sufficient  to  charge  the  plaintiff  with  notice.  It  will  there- 
fore be  proper  to  consider  the  other  questions  which  have  been  made  b}^ 
the  counsel. 

Can  a  common  carrier  restrict  his  liability  by  a  general  notice,  in  any 
form,  brought  home  to  the  opposite  party?  Without  intending  to  go 
much  at  large  into  this  vexed  question,  it  will  be  necessary  to  state  some 
leading  principles  relating  to  the  duties  and  liabilities  of  the  carrier,  and 
the  ground  upon  which  his  responsibility  rests. 

The  rules  of  the  common  law  in  relation  to  common  carriers  are 
simple,  well-defined,  and,  what  is  no  less  important,  well  understood. 
The  carrier  is  liable  for  all  losses  except  those  occasioned  b}'  the  act  of 
God  or  the  public  enemies.  He  is  regarded  as  an  insurer  of  the  prop- 
erty committed  to  his  charge,  and  neither  destruction  by  fire  nor  rob- 
bery by  armed  men  will  discharge  him  from  liability.  Holt.  C  J.,  in 
pronouncing  his  celebrated  judgment  in  the  case  of  Coggs  v.  Bernard,^ 
said:  ''This  is  a  politic  establishment,  contrived  by  the  policy  of  the 
law,  for  the  safety  of  all  persons,  the  necessity  of  whose  affairs  oblige 
them  to  trust  these  sort  of  persons,  that  they  may  be  safe  in  their  ways 
of  dealing."  In  Forivard  v.  Pittard,^  where  the  carrier  was  held  liable 
for  a  loss  by  fire.  Lord  Mansfield  said,  that,  "  to  prevent  litigation,  col- 
lusion, and  the  necessity  of  going  into  circumstances  impossible  to  be 
unravelled,  the  law  presumes  against  the  carrier,  unless  he  shows  it  was 
done  by  the  king's  enemies,  or  by  such  act  as  could  not  happen  by  the 
intervention  of  man, — as  storms,  lightnings,  and  tempests."  And  in 
relation  to  a  loss  by  robbery  he  said :  "  The  ti\ue  reason  is  for  fear  it  may 
give  room  for  collusion,  —  that  the  master  may  contrive  to  be  robbed  on 
purpose,  and  share  the  spoil."  The  rule  has  been  fully  recognized  in 
this  State. 2  In  Roberts  v.  Turner,'^  Spencer,  J.,  said:  "The  carrier  is 
held  responsible  as  an  insurer  of  the  goods,  to  prevent  combinations, 
chicanery,  and  fraud." 

I  2  Ld.  Raym.  918.  *  1  Term  Rep.  27.  r.  Rossell,  10  Johns.  1;  Kemp  v.  Coughtry, 

8  Colt  V.  McMechen,  6  Johns.  IGO;  Elliott       11  Johns.  107.  *  12  Johns.  232. 


LIABILITY   FOR   LOSS    OF.  493 


Supreme  Court  of  Judicature  of  New  York. 

A  common  carrier  exercises  a  public  employment,  and  consequently 
has  public  duties  to  perform.  He  cannot,  like  the  tradesman  or 
mechanic,  receive  or  reject  a  customer  at  pleasure,  or  charge  any  price 
that  he  chooses  to  demand.  If  he  refuse  to  receive  a  passenger  or 
carry  goods  according  to  the  course  of  his  particular  employment, 
without  a  sufficient  excuse,  he  will  be  liable  to  an  action ;  and  he  can 
only  demand  a  reasonable  compensation  for  his  services  and  the  hazard 
which  he  incurs. ^ 

It  has  been  said  that  the  carrier  is  liable  in  respect  of  his  reward. ^ 
Lord  Coke  says:  "He  hath  his  hire,  and  thereby  implicitly  undertaketh 
the  safe  delivery  of  the  goods  delivered  to  him. ' '  ^  The  carrier  may, 
no  doubt,  demand  a  reward  proportioned  to  the  service  he  renders  and 
the  risk  he  incurs ;  and,  having  taken  it,  he  is  treated  as  an  insurer,  and 
bound  to  the  safe  delivery  of  the  property.  But  the  extent  of  his  lia- 
bility does  not  depend  on  the  terms  of  his  contract ;  it  is  declared  by 
law.  His  undertaking,  when  reduced  to  form,  does  not  differ  from  that 
of  any  other  person  who  may  agree  to  carry  goods  from  one  place  to 
another ;  and  yet,  one  who  does  not  usually  exercise  this  public  employ- 
ment will  incur  no  responsibility  beyond  that  of  an  ordinary  bailee  for 
hire ;  he  is  not  answerable  for  a  loss  by  any  means  against  which  he 
could  not  have  guarded  by  ordinary  diligence.  It  is  not  the  form  of 
the  contract,  but  the  policy  of  the  law,  which  determines  the  extent  of 
the  carrier's  liability.  In  Ansell  v.  Water hoiise,'^  which  was  an  action 
on  the  case  against  the  proprietor  of  a  stage-coach  for  an  injury  to  the 
plaintiff's  wife,  Holroyd,  J.,  said:  "This  action  is  founded  on  what 
is  quite  collateral  to  the  contract,  if  any ;  and  the  terms  of  the  contract, 
unless  changing  the  duty  of  a  common  carrier,  are  in  this  case  quite 
immaterial.  Tlie  declaration  states  an  obligation  imposed  upon  him  by 
the  law.  This  is  an  action  against  a  person  who,  by  an  ancient  law, 
held  as  it  were  a  public  office,  and  was  bound  to  the  pul)lic.  This 
action  is  founded  on  the  general  obligation  of  the  law."  In  Forivard  v. 
Pittard,^  hold  Mansfield  said:  "It  appears  from  all  the  cases  for  a 
hundred  5'ears  back,  that  there  are  events  for  which  the  carrier  is  liable 
independent  of  his  contract.  By  the  nature  of  his  contract,  he  is  liable 
fpr  all  due  care  and  diligence ;  and  lor  any  negligence  he  is  suable  on 
his  contract.     But  there  is  a  further  degree  of  responsibility  by  the  cus- 

1  Coggs  V.  Bernard,  2  Ld.  Rayin.  917;  Bac.  Kent'sComm.  599;  Story  on  Bail.  328;  Jeremy 

Abr.,  tit.  "Carriers,"  B;  Boulston  v.  Sandi-  on  Car.  59. 
ford,  Skin.  279 ;  Gisbourn  v.  Hurst,  1  Salk.  249,  2  Lane  v.  Cotton,  1  Salk.  U3. 

250;  Riley  v.  Home,  5  Bing.  217;   Harris  v.  »  Co.  Lit.  89  a.  «  2  Chit.  1. 

Packwood,  3  Taun.  272,  per  Lawrence,  J. ;  2  ^  1  Term  Rep.  27. 


494  PASSENGER  S    BAGGAGE. 

Hollister  v.  Nowlen. 

torn  of  the  realm, — that  is,  by  the  common  law;  a  carrier  is  in  the 
nature  of  an  insurer."  ^ 

The  law  in  relation  to  carriers  has  in  some  instances  operated  with 
severity,  and  they  have  been  charged  with  losses  against  which  no 
degree  of  diligence  could  guard.  But  cases  of  this  description  are 
comparatively  of  rare  occurrence  ;  and  the  reason  why  they  are  included 
in  the  rule  of  the  common  law  is  not  because  it  is  fit  in  itself  that  any 
man  should  answer  without  a  fault,  but  because  there  are  no  means  of 
effectually  guarding  the  public  against  imposition  and  fraud,  without 
making  the  rule  so  broad  that  it  will  sometimes  operate  harshly.  It 
was  well  remarked  by  Best,  C.  J.,  in  Riley  v.  Horne,^  that  "when 
goods  are  delivered  to  the  carrier,  they  are  usually  no  longer  under 
the  eye  of  the  owner ;  he  seldom  follows  or  sends  any  servant  with  them 
to  their  place  of  destination.  If  they  should  be  lost  or  injured  by  the 
grossest  negligence  of  the  carrier  or  his  servants,  or  stolen  by  them,  or 
by  thieves  in  collusion  with  them,  the  owner  would  be  unable  to  prove 
either  of  these  causes  of  loss.  His  witnesses  must  be  the  carrier's  ser- 
vants, and  they,  knowing  that  they  could  not  be  contradicted,  would 
excuse  their  masters  and  themselves."  These  remarks  lose  little  of 
their  force  when  applied  to  the  case  of  passengers  in  stages,  steam- 
boats, and  railroad  cars ;  for,  although  they  are  in  the  neighborhood 
of  their  property,  it  is  neither  under  their  eye,  nor  have  they  any  effi- 
cient means  of  protecting  it  against  the  consequences  of  negligence  and 
fraud.  The  traveller  is  usually  among  strangers.  His  property  is  in  the 
hands  of  men  who  are  sometimes  selected  with  little  regard  to  their  dili- 
gence and  fidelity ;  and  if  the  remedy  of  the  owner,  in  case  of  loss, 
depend  on  the  question  of  actual  negligence  or  fraud,  he  must  make 
out  his  right  to  recover  by  calling  the  very  men  whose  recklessness  or 
frailty  has  occasioned  the  injury.  It  was  remarked  by  Best,  C.  J.,  in 
Brooke  v.  Pickwick^^  that,  "  though  coach  proprietors  of  the  present 
day  are  a  respectable  and  opulent  class,  many  of  the  persons  employed 
by  them  resemble  those  whom  the  common  law  meant  to  guard  against." 

There  is  less  of  hardship  in  the  case  of  the  carrier  than  has  some- 
times been  supposed ;  for  while  the  law  holds  him  to  an  extraordinary 
degree  of  diligence,  and  treats  him  as  an  insurer  of  the  propert}',  it 
allows  him,  like  other  insurers,  to  demand  a  premium  proportioned  to 
the  hazards  of  his  employment.  The  rule  is  founded  upon  a  great 
principle  of  public  policy ;  it  has  been  approved  by  many  generations 

»  See  also  Hide  v.  Froprietors,  etc.,  1  Esp.  36.  «  5  Bing.  217.  «  4  Bing.  21S. 


LIABILITY    FOR    LOSS    OF.  495 

Supreme  Court  of  Judicature  of  New  York. 

of  wise  men ;  and  if  the  courts  were  now  at  liberty  to  make  instead  of 
declaring  the  law,  it  may  well  be  questioned  whether  they  could  devise 
a  system  which,  on  the  whole,  would  operate  more  beneficially.  I  feel 
the  more  confident  in  this  remark  from  the  fact  that  in  Great  Britain, 
after  the  courts  had  been  perplexed  for  thirty  years  with  various  modi- 
fications of  the  law  in  relation  to  carriers,  and  when  they  had  wandered 
too  far  to  retrace  their  steps,  the  legislature  finally  interfered,  and  in 
all  its  most  important  features  restored  the  salutary  rule  of  the  common 
law. 

The  doctrine  that  a  carrier  might  limit  his  responsibility  by  a  general 
notice  brought  home  to  the  employer  prevailed  in  England  for  only  a 
short  period.  In  Smith  v.  Horne,^  Burrough,  J.,  said:  "The  doc- 
trine of  notice  was  never  known  until  the  ease  of  Forward  v.  PUtnrd,^ 
which  I  argued  many  years  ago."  That  case  was  decided  in  1785,  and 
it  is  remarkable  that  it  does  not  contain  one  word  on  the  subject  of 
notice.  If  that  question  was  in  any  form  before  the  court,  it  is  not 
mentioned  by  the  reporter ;  and  the  decision  was  against  the  carrier, 
although  the  loss  was  occasioned  by  fire,  without  his  default.  The 
doctrine  was  first  recognized  in  Westminister  Hall  in  1804,  where  the 
case  of  NlcJiolson  v.  WUlan  ^  was  decided.  Lord  Ellenborough  said 
tlie  practice  of  making  a  "special  acceptance"  had  prevailed  for  a  long 
lime,  and  that  there  was  "no  case  to  be  met  with  in  the  books  in  which 
the  right  of  a  carrier  thus  to  limit  by  special  contract  his  own  responsi- 
bility, has  ever  been  by  express  decision  denied."  Whatever  may  be 
the  rule  where  there  is  in  fact  a  special  contract,  the  learned  judge 
could  not  have  intended  to  say  that  a  carrier  had  for  a  long  time  been 
allowed  to  limit  his  liability  by  a  general  notice,  or  that  a  special  con- 
tract had  been  implied  from  such  a  notice ;  for  he  refers  to  no  case 
in  support  of  the  position,  and  would  have  searched  in  vain  to  find  one. 
Only  eleven  years  before  (in  1793),  Lord  Kenyon  had  expressly  laid 
down  a  different  rule  in  Hide  v.  Proprietors,  etc.'^  He  said:  "There  is 
a  difference  where  a  man  is  chargeable  by  law  generally,  and  where  on 
his  contract.  Where  a  man  is  bound  to  any  duty,  and  chargeable  to  a 
certain  extent  by  the  operation  of  law,  in  such  case  he  cannot,  by  any 
act  of  his  own,  discharge  himself."  And  he  put  the  case  of  common 
carriers,  and  said  they  cannot  discharge  themselves  "by  any  act  of 
their  own,  —  as  by  giving  notice,  for  example,  to  that  effect."  This 
case  was  afterwards  before  the  King's  Bench,  but  on  another  point.^ 

The  doctrine  in  question  was  not  received  in  Westminister  Hall  with- 

1  8  Taun.  144.        2  1  xerm  Rep.  27.        '  5  East,  507.        <  1  Esp.  36.        '  6  Term  Rep.  389. 


490  passenger's  baggage. 


Hollister  v.  Nowlen. 


out  much  doubt ;  and  although  it  ultimately  obtained  something  like  a 
firm  footing,  many  of  the  English  judges  have  expressed  their  regret 
that  it  was  ever  sanctioned  by  the  courts.  Departing  as  it  did  from  the 
simplicity  and  certainty  of  the  common-law  rule,  it  proved  one  of  the 
most  fruitful  sources  of  legal  controversy  which  has  existed  in  modern 
times.  When  it  was  once  settled  that  a  carrier  might  restrict  his  liabil- 
ity by  a  notice  brought  home  to  his  employer,  a  multitude  of  questions 
sprung  up  in  the  courts  which  no  human  foresight  could  have  antici- 
pated. Each  carrier  adopted  such  a  form  of  notice  as  he  thought  best 
calculated  to  shield  himself  from  responsibility  without  the  loss  of 
employment,  and  the  legal  effect  of  each  particular  form  of  notice 
could  only  be  settled  by  judicial  decision.  Whether  one  who  had  given 
notice  that  he  would  not  be  answerable  for  goods  beyond  a  certain  value 
unless  specially  entered  and  paid  for  was  liable  in  case  of  loss  to  the 
extent  of  the  value  mentioned  in  the  notice,  or  was  discharged  alto- 
gether ;  whether,  notwithstanding  the  notice,  he  was  liable  for  a  loss  by 
negligence,  and,  if  so,  what  degree  of  negligence  would  charge  him ; 
what  should  be  sufficient  evidence  that  the  notice  came  to  the  knowl- 
edge of  the  emploj^er;  whether  it  should  be  left  to  the  jury  to  presume 
that  he  saw  it  in  a  newspaper  which  he  was  accustomed  to  read,  or 
observed  it  posted  up  in  the  office  where  the  carrier  transacted  his  busi- 
ness ;  and  then,  whether  it  was  painted  in  large  or  small  letters,  and 
whether  the  owner  went  himself  or  sent  his  servant  with  the  goods,  and 
whether  the  servant  could  read,  —  these  and  many  other  questions  were 
debated  in  the  courts,  while  the  public  suffered  an  almost  incalculable 
injury  in  consequence  of  the  doubt  and  uncertainty  which  hung  over 
this  important  branch  of  the  law.^  After  j'ears  of  litigation,  Parliament 
interfered  in  1830,  and  relieved  both  the  courts  and  the  public  by  sub- 
stantially reasserting  the  rule  of  the  common  law.^ 

Without  going  into  a  particular  examination  of  the  English  cases,  it 
is  suflBcient  to  say  that  the  question  has  generally  been  presented  on  a 
notice  by  the  carrier  that  he  would  not  be  responsible  for  any  loss 
beyond  a  certain  sum  unless  the  goods  were  specially  entered  and  paid 
for;  and  the  decisions  have  for  the  most  part  only  gone  far  enougli 
to  say  that  if  the  owner  do  not  comply  with  the  notice,  bj'^  stating  the 
true  value  of  the  goods  and  having  them  properly  entered,  the  carrier 
will  be  discharged.  In  these  cases  the  carrier  had  not  attempted  to 
exclude  all  responsibihty.  But  there  are  two  nisi  prius  decisions 
which  allow  the  carrier  to  cast  off  all  liability  whatever.     In  Having  v. 

1  See  1  Bell's  Comm.  474.  i  Stat.  1  Wm.  IV.,  c.  63. 


LIABILITY    FOR    LOSS    OF.  497 

Supreme  Court  of  Judicature  of  New  York. 

Todd,^  the  defendant  had  given  notice  that  he  would  not  answer  for  a 
loss  by  fire ;  and  such  a  loss  having  occurred,  Lord  Ellbnborough 
thought  that  carriers  might  exclude  their  liability  altogether,  and  non- 
suited the  plaintiff.  In  Leeson  v.  HoU,^  tried  in  1816,  he  made  a  like 
decision;  though  he  very  justly  remarked  that  "if  this  action  had  been 
brought  twenty  years  ago,  the  defendant  would  have  been  liable  ;  since 
by  the  common  law  a  carrier  is  liable  in  all  cases  except  two."  We  have 
here,  what  will  be  found  in  many  of  the  cases,  a  very  distinct  admission 
that  the  courts  had  departed  from  the  law  of  the  land,  and  allowed 
what  Jeremy's  Treatise  on  Carriers^  very  properly  terms  "recent 
innovations." 

Some  of  the  cases  which  have  arisen  under  a  general  notice  have 
proceeded  on  the  ground  of  fraud,'*  others  on  notion  of  a  special 
acceptance  or  special  contract,^  while  in  some  instances  it  is  difficult 
to  say  what  general  principle  the  court  intended  to  establish. 

So  far  as  the  cases  have  proceeded  bn  the  ground  of  fraud,  and  can 
properly  be  referred  to  that  head,  they  rest  on  a  solid  foundation ;  for 
the  common  law  abhors  fraud,  and  will  not  fail  to  overthrow  it  in  all 
the  forms,  whether  new  or  old,  in  which  it  may  be  manifested.  As 
the  carrier  incurs  a  heavy  responsibility,  he  has  a  right  to  demand  from 
the  employer  such  information  as  will  enable  him  to  decide  on  the  proper 
amount  of  compensation  for  his  services  and  risk,  and  the  degree  of  care 
which  he  ought  to  bestow  in  discharging  his  trust ;  and  if  the  owner  give 
an  answer  which  is  false  in  a  material  point,  the  carrier  will  be  absolved 
from  the  consequences  of  any  loss  not  occasioned  by  negligence  or  mis- 
conduct. The  case  of  Kenrig  v.  Eggleston  ^  was  decided  in  1649.  The 
plaintiff  delivered  a  box  to  the  porter  of  the  carrier,  saying  "  there  was 
a  book  and  tobacco  in  the  box,"  when  in  truth  it  contained  £100  in 
money  besides.  Roll,  J.,  thought  the  carrier  was  nevertheless  liable 
for  a  loss  by  robber3^  "But  in  respect  of  the  intended  cheat  to  the 
carrier,  he  told  the  jury  they  might  consider  him  in  damages."  The 
jury,  however,  found  the  whole  sum  (abating  the  carriage)  for  the 
plaintiff,  quod  durum  videbatur  circumstantibus.  In  Gibbon  v.  Paynton,'' 
Lord  Mansfield  said  this  was  a  case  of  fraud,  and  he  "should  have 
agreed  in  opinion  with  the  circumstantibus."  In  Tyly  v.  Morrice,^  two 
bags  of  money,  sealed  up,  were  delivered  to  the  carrier  [the  servant 
of  the  plaintiff],  saying  tliey  contained  £200,  and  he  gave  a  receipt 
for  the  money.     In  truth,  the  bags  contained  £450 ;  and  the  carrier, 

>  1  stark.  72.  *  1  Stark.  186.  «  Nicholson  v.  Wman,  5  East,  507 ;  Harris 

«  Pp.  35,  3G.  V.  Packwood,  3  Taun.  271.  «  Alcyn,  93. 

*  Batson  v.  Donovan,  4  Bam.  &  Aid.  21.  •  4  Burr.  2298.  «  Carth.  485. 

32 


498  passenger's  baggage. 

Hollister  v.  Nowlen. 

having  been  robbed,  paid  the  £200 ;  and  in  this  action,  brought  to 
recover  the  balance,  the  Chief  Justice  told  the  jury  that,  'since 
the  plaintiffs  had  taken  this  course  to  defraud  the  carrier  of  his 
reward,  they  should  find  for  the  defendant."  And  the  same  point 
was  decided  in  another  action  against  the  same  carrier.  In  Gibbon 
V.  Paynton,^  £100  in  money  was  hid  in  hay  in  an  old  mail-bag,  which 
fact  the  plaintiff  concealed  from  the  caiTier;  and  the  money  having 
been  stolen,  the  court  held  that  this  fraud  would  discharge  the  defend- 
ant. In  the  case  of  Orange  County  Bank  v,  Brown^^  the  agent  of 
the  plaintiffs  put  $11,000  in  bank-bills  in  his  trunk,  and  delivered 
it  to  the  captain  of  the  steamboat  as  his  baggage.  The  court  held 
that  the  term  "baggage"  would  only  include  money  for  the  expenses 
of  travelling,  and  not  a  large  sum,  as  in  this  case,  taken  for  the  mere 
purpose  of  transportation ;  and  it  was  said  that  the  conduct  of  the 
plaintiffs'  agent  was  a  virtual  concealment  as  to  the  money,  —  that  "his 
representation  of  his  trunk  and  tjbe  contents  as  baggage  was  not  a  fair 
one,  and  was  calculated  to  deceive  the  captain."  The  owner  is  not 
bound  to  disclose  the  nature  or  value  of  the  goods ;  but  if  he  is  in- 
quired of  by  the  carrier,  he  must  answer  truly. -^ 

Fraud  cannot,  I  think,  be  imputed  to  the  owner  from  the  mere  fact 
that  he  delivers  goods  after  having  seen  a  general  notice  published  by 
the  carrier,  whatever  may  be  its  purport.  If  the  carrier  wishes  to  ascer- 
tain the  extent  of  his  risk,  he  should  inquire  at  the  time  the  goods  are 
delivered  ;  and  then,  if  he  is  not  answered  truly,  he  will  have  a  defence."* 
A  different  rule  practically  changes  the  burden  of  proof.  At  the  com- 
mon law,  it  is  enough  that  the  owner  prove  the  undertaking  of  the 
carrier,  and  that  the  goods  did  not  reach  their  destination.  But  this 
doctrine  of  implying  fraud  from  a  notice  requires  him  to  go  further^ 
and  show  that  he  complied  with  the  terras  of  the  advertisement.  He 
may  have  informed  the  carrier  trul}'^  of  the  value  of  the  goods, — there 
may  be  no  fraud,  but  still  he  is  required  to  prove  himself  innocent 
before  he  can  recover.  Independent  of  a  notice,  the  onus  would  rest 
where,  upon  general  principles,  it  ought  to  rest,  —  on  him  who  imputes 
fraud  ;  and  the  carrier  could  not  discharge  himself  without  showing 
some  actual  misrepresentation  or  fraudulent  concealment.  It  does  not 
lie  on  the  employer  to  show  how  the  loss  was  occasioned,  or  that  he  has 
acted  properly ;  but  the  law  presumes  against  the  carrier,  until  he 
proves  that  the  loss  happened  by  means  or  under  circumstances  for 
which  he  is  not  answerable.^ 

1  4  Burr.  2298.  ■•  See  Brooke  t;.  Pickwick,  4  Bing.  218. 

2  9  Wend.  85.  6  Forward  v.  Pittard,  1  Term  Rep.  33 ;  Mur- 

3  Phillips  V.  Earle,  8  Pick.  182.  phy  v.  Staton,3Munf.  239;  Story  on  Bail.  338. 


LIABILITY    FOR    LOSS    OF.  499 

Supreme  Coiirt  of  Judicature  of  New  York. 

But  it  is  enough  for  this  case  that  the  question  of  fraud  can  never 
arise  under  such  a  notice  as  was  given  by  the  defendant.  He  did  not 
say  to  the  public  that  he  would  not  be  answerable  for  baggage  beyond 
a  certain  s'lm  unless  the  owner  disclosed  the  value ;  he  said  he  would 
not  be  answerable  in  any  event.  It  was,  in  effect,  a  notice  that  he 
would  not  abide  the  liabilities  which  the  law,  upon  principles  of  public 
policy,  had  attached  to  his  employment.  If  the  notice  can  aid  the 
defendant  in  any  form,  it  certainly  does  not  go  to  the  question  of 
fraud. 

The  only  remaining  ground  of  argument  in  favor  of  the  carrier  is 
that  a  special  contract  may  be  inferred  from  the  notice.  Independent 
of  the  modern  English  cases,  it  seems  never  to  have  been  directly 
adjudged  that  the  liability  of  the  carrier  can  be  restricted  by  a  special 
contract.  Noy,^  after  speaking  of  a  loss  by  negligence,  says:  "If  a 
«  arrier  would  refuse  to  carry  unless  a  promise  were  made  to  him  that 
he  should  not  be  charged  with  an3'^  such  miscarriage,  that  promise  were 
void."  If  he  cannot  stipulate  for  a  partial,  it  is  difficult  to  see  how  he 
can  for  a  total  exemption  from  liability.  In  Nicholson  v.  Willan^-  Lord 
Ellenborough  found  no  direct  adjudication  in  favor  of  the  position 
that  a  carrier  may  limit  his  responsibility  by  a  special  contract ;  but  he 
relied  on  the  fact  that  such  an  exemption  had  never  been  "by  express 
decision  denied."  Although  this  mode  of  reasoning  is  not  the  most 
conclusive,  I  shall  not  deny  that  the  carrier  may  by  express  contract 
restrict  his  liability ;  for  though  the  point  has  never  been  expressly 
adjudged,  it  has  often  been  assumed  as  good  law.^  If  the  doctrine  be 
well  founded,  it  must,  I  think,  proceed  on  the  ground  that  the  person 
intrusted  with  the  goods,  although  he  usually  exercises  that  employment, 
does  not  in  the  particular  case  act  as  a  common  carrier.  The  parties 
agree  that  in  relation  to  that  transaction  he  shall  throw  off  his  public 
character,  and,  like  other  bailees  for  hire,  only  be  answerable  for  negli- 
gence or  misconduct.  If  he  act  as  a  carrier,  it  is  difficult  to  undei'stand 
how  he  can  make  a  valid  contract  to  be  discharged  from  a  duty  or 
liability  imposed  upon  him  by  law. 

But,  conceding  that  there  may  be  a  special  contract  for  a  restricted 
liability,  such  a  contract  cannot,  I  think,  be  inferred  from  a  general 
notice  brought  home  to  the  employer.  The  argument  is,  that  wliere  a 
party  delivers  goods  to  be  carried,  after  seeing  a  notice  that  the  carrier 

1  Maxims.  92.  Yates,  J.;  Morse  v.  Sine,  1  Vent.  190,  238; 

2  5  East,  513.  Catley  v.  Wintringliam,  Peak.  150;   Harris  v. 
^  Kenrig  tJ.  Eggleston,  Aleyn,  93;  4  Co.  84;       I'ackwood,  3  Tauu.  271;  Leesoii  v.  Holt,  1 

note  to  Soulhcoic's  Case,  4  Burr.  2301,  per       Stark.  186. 


500  passenger's  baggage. 

Hollister  v.  Nowlen. 

intends  to  limit  his  responsiViility,  his  assent  to  the  terms  of  the  notice 
may  be  imphed.  But  this  argument  entirely  overlooks  a  very  important 
consideration.  Notwithstanding  the  notice,  the  owner  has  a  right  to 
insist  that  the  carrier  shall  receive  the  goods  subject  to  all  the  responsi- 
bilities incident  to  his  employment.  If  the  delivery  of  goods  undci' 
such  circumstances  authorizes  an  implication  of  any  kind,  the  presump- 
tion is  as  strong,  to  say  the  least,  that  the  owner  intended  to  insist  on 
his  legal  rights,  as  it  is  that  he  was  willing  to  yield  to  the  wishes  of  the 
carrier.  If  a  coat  be  ordered  from  a  mechanic  after  he  has  given  the 
customer  notice  that  he  will  not  fui'nish  the  article  at  a  less  price  than 
$100,  the  assent  of  the  customer  to  pay  that  sum,  although  it  be  double 
the  value,  may  perhaps  be  implied  ;  but  if  the  mechanic  had  been  under 
legal  obligation,  not  only  to  furnish  the  coat,  but  to  do  so  at  a  reason- 
able price,  no  such  implication  could  arise.  Now,  the  carrier  is  under 
a  legal  obligation  to  receive  and  convey  the  goods  safely,  or  answer  for 
the  loss.  He  has  no  right  to  px-escribe  any  other  terms ;  and  a  notice 
can,  at  the  most,  only  amount  to  a  proposal  for  a  special  contract, 
which  requires  the  assent  of  the  other  party.  Putting  the  matter  in  the 
most  favorable  light  for  the  carrier,  the  mere  delivery  of  goods  after 
seeing  a  notice,  cannot  warrant  a  stronger  presumption  that  the  owner 
intended  to  assent  to  a  restricted  liability  on  the  part  of  the  carrier, 
than  it  does  that  he  intended  to  insist  on  the  liabilities  imposed  bj'  law ; 
and  a  special  contract  cannot  be  implied  where  there  is  such  an  equi- 
poise of  probabilities. 

Making  a  notice  the  foundation  for  presuming  a  special  contract  is 
subject  to  a  further  objection.  It  changes  the  burden  of  proof.  Inde- 
pendent of  the  notice,  it  would  be  sufficient  for  the  owner  to  prove  the 
delivery  and  loss  of  the  goods,  and  it  would  then  lie  on  the  cai'rier  to 
discharge  himself  by  showing  a  special  contract  for  a  restricted  liability  ; 
but  giving  effect  to  the  notice  makes  it  necessary  for  the  owner  to  go 
be3'ond  the  delivery  and  loss  of  the  goods,  and  prove  that  he  did  not 
assent  to  the  proposal  for  a  limited  responsibility.  Instead  of  leaving 
the  onus  of  showing  assent  on  him  who  sets  up  that  affirmative  fact,  it 
is  thrown  upon  the  other  party,  and  he  is  required  to  prove  a  nega- 
tive, —  that  he  did  not  assent. 

After  all  that  has  been  or  can  be  said  in  defence  of  these  notices, 
whether  regarded  either  as  a  ground  for  presuming  fraud  or  implj-ing 
a  special  agreement,  it  is  impossible  to  disguise  the  fact  that  the^^  are  a 
mere  contrivance  to  avoid  the  liability  which  tlie  law  has  attached  to  the 
employment  of  the  carrier.  If  the  law  is  too  rigid,  it  should  be  modi- 
fied by  the  legislature,  and  not  by  the  courts.     It  has  been  admitted 


LIABILITY    FOR    LOSS    OF.  501 

Supreme  Court  of  Judicature  of  New  York. 

over  and  over  again  by  the  most  eminent  English  judges  tliat  the  effect 
given  to  these  notices  was  a  departure  from  the  common  law,  and  they 
have  often  regretted  their  inabilit}'  to  get  back  again  to  that  firm 
foundation.  The  doctrine  that  a  carrier  may  limit  his  responsibilit}'  by 
a  notice  was  wholly  unknown  to  the  common  law  at  the  time  of  our 
Revolution.  It  has  never  been  received  in  this,  nor,  so  far  as  I  have 
observed,  in  any  of  the  other  States.  The  point  has  been  raised,  but 
not  directly  decided.^  Should  it  now  be  received  among  us,  it  will  be 
after  it  has  been  tried,  condemned,  and  abandoned  in  that  country  to 
which  we  have  been  accustomed  to  look  for  light  on  questions  of  juris- 
prudence. 

The  act  of  Parliament  already  mentioned  enumerates  various  articles 
of  great  value  in  proportion  to  the  bulk,  and  otters  which  are  peculiarly 
exposed  to  damage  in  transportation,  and  declares  that  the  carrier  shall 
not  be  liable  for  the  loss  or  injury  of  those  articles,  when  the  value 
exceeds  £10,  unless  at  the  time  of  delivery  the  owner  shall  declare 
the  nature  and  value  of  the  property,  and  pay  the  increased  charge 
which  the  carrier  is  allowed  to  make  for  his  risk  and  care.  If  the 
owner  complies  with  this  requirement,  the  carrier  must  give  him  a 
receipt  for  the  goods,  "acknowledging  the  same  to  have  been  in- 
sured," and  if  he  refuse  to  give  the  receipt,  he  remains  ''liable  and 
responsible  as  at  the  common  law."  The  provision  extends  to  the 
proprietors  of  stage-coaches  as  well  as  all  other  carriers,  and  to  prop- 
erty which  may  "accompany  the  person  of  any  passenger,"  as  well 
as  other  goods ;  and  the  statute  declares  that  after  the  first  day  of  Sep- 
tember, 1830,  "  no  public  notice  or  declaration  heretofore  made,  or 
hereafter  to  be  made,  shall  be  deemed  or  construed  to  limit  or  in  any- 
wise affect  the  liability  at  common  law"  of  any  carriers,  but  that  all 
and  every  such  carrier  shall  be  "  liable  as  at  the  common  law  to  answer" 
for  the  loss  or  injury  of  the  property,  "  any  public  notice  or  declaration 
by  them  made  and  given  contrary  thereto,  or  in  any  wise  limiting  such 
liability,  notwithstanding."  The  only  modification  of  the  common-law 
rule  in  relation  to  carriers  made  by  this  statute  is  that  wliich  requires 
the  owner,  without  a  special  request,  to  disclose  the  nature  and  value  of 
the  package  when  it  contains  articles  of  a  particular  description.  The 
premium  for  care  and  risk,  the  carrier  might  have  required  before.  In 
relation  to  all  articles  not  enumerated,  and  in  relation  to  those  also,  if  the 
owner  comply  with  the  requirements  of  the  act,  the  carrier  is  declared 
liable  as  an  insurer,  and  must  answer  "as  at  the  common  law."  The 
whole  doctrine  which  had  sprung  up  under  notices  is  cut  up  by  the 

1  Barney  v.  Prentiss,  4  Har.  &  J.  317;  Dwight  v.  Brewster,  1  Pick.  50. 


502 


PASSENGER  S    BAGGAGE. 


New  York  Central  and  Hudson  River  Railroad  Company  v.  Fraloff. 

roots,  and  in  such  language  as  renders  it  apparent  that  the  legislature 
deemed  it  an  innovation  on  the  law  of  the  laud. 

If  after  a  trial  of  thirty  years  the  people  of  Great  Britain,  whose 
interests  and  pursuits  are  not  very  dissimilar  to  our  own,  have  con- 
demned the  whole  doctrine  of  limiting  the  carrier's  liability  by  a  notice  ; 
if  after  a  long  course  of  legal  controversy  they  have  retraced  their  steps, 
and  returned  to  the  simplicity  and  certainty  of  the  common-law  rule  ;  we 
surely  ought  to  profit  by  their  experience,  and  should  hesitate  long 
before  we  sanction  a  practice  which  not  only  leads  to  doubt  and  uncer- 
tainty concerning  the  rights  and  duties  of  the  parties,  but  which  encour- 
ages negligence  and  opens  a  wide  door  to  fraud. 

If  the  policy  of  the  law  in  relation  to  carriers  were  more  questionable 
than  I  think  it  is,  it  would  be  the  business  of  the  legislature,  and  not  of 
the  courts,  to  apply  the  proper  remedy.  The  plaintiff  is  entitled  to 
judgment  in  pursuance  of  the  stipulation  contained  in  the  case. 

The  Chief  Justice  concurred. 

Co  WEN,  J.,  concurred  in  the  result,  for  the  reasons  assigned  by  him 
in  the  case  of  Cole  v.  Goodwin.^ 

Judgment  for  the  plaintiff. 


2.  THE   SAME   SUBJECT  — WHAT   IS   "  BAGGAGE "— VALUE   OF  BAG- 
gage—fraud of  passenger. 

New  York  Central  and  Hudson  River  Railroad  Company 

V.  Fraloff.* 

Supreme  Court  of  the  United  States,  October  Term,  1879. 

Hon.  Morrison  R.  Waite,  Chief  Justice, 
"     Nathan  Clifford, 

Samuel  F.  Miller, 

William  Strong, 

Ward  Hunt, 

Noah  H.  Swayne, 
•*     Stephen  J.  Field, 

Joseph  P.  Bradley, 
"     John  M.  Harlan, 

1.  Kegnlations  as  to  Bagrgaee  of  Passengers.— It  is  competent  for  a  passenger- carrier, 
by  specific  regulations,  distinctly  brought  to  the  knowledge  ol  tlie  passenger,  whloli  are 


Justices, 


•  Reported,  9  Cent.  L.  J.  432;  s.  c.  8  Reporter,  801;  20  Alb.  L.  J.  409. 
1  19  Wend.  251. 


ARTICLES  OF  GREAT  VALUE.  503 


Supreme  Court  of  the  United  States. 

reasonable,  and  not  inconsistent  with  any  statute  or  its  duties  to  tlie  public,  to  protect 
itself  against  liability,  as  insurer,  for  baggage  exceeding  a  fixed  amount  in  value,  ex- 
cept upon  additional  compensation  proportioned  to  the  risk. 

2.  Extra  Compensation.  — As  a  condition  precedent  to  any  contract  for  the  transporta- 

tion of  baggage,  the  carrier  may  require  information  from  the  passenger  as  to  its  value, 
and  demand  exti-a  compensation  for  any  excess  beyond  that  which  the  passenger  may 
reasonably  demand  to  be  transported  as  baggage  under  the  contract  to  carry  the 
person. 

3.  Value  of  Baggage  —  Fraud  of  Passengrer.  —  The  carrier  may  be  discharged  from 

liability  for  the  full  value  of  the  passenger's  baggage,  if  the  latter,  by  any  device  or 
artifice,  puts  off  inquiry  as  to  such  value,  whereby  responsibility  is  imposed  upon  the 
carrier  beyond  what  it  is  bound  to  assume  in  consideration  of  the  ordinary  fare  charged 
for  the  transportation  of  the  person. 

4.  Voluntary  Disclosure  of  Value  of  Bag-gage  not  required.— In  absence  of  legisla- 

tion, or  special  regulations  by  the  carrier,  or  of  conduct  by  the  passenger  misleading 
the  carrier  as  to  value  of  baggage,  the  failure  of  the  passenger,  unasked,  to  disclose 
the  value  of  his  baggage  is  not,  in  itself,  a  fraud  upon  the  carrier. 

5.  What  is  "  Baggage."  —  To  the  extent  that  articles  carried  by  a  passenger  for  his  per- 

sonal use  when  travelling  exceed  in  quantity  and  value  such  as  are  ordinarily  or  usually 
carried  by  passengers  of  like  station  and  pursuing  like  journeys,  they  are  not  baggage 
for  which  the  carrier,  by  general  law,  is  responsible  as  insurer. 

€.  Excess  of  Baggage  — Law  and  Fact.  — Whether  a  passenger  has  carried  such  an 
excess  of  baggage  is  not  a  pure  question  of  law  for  the  sole  or  final  determination  of  the 
court,  but  a  question  of  fact  for  the  jury,  under  proper  guidance  as  to  the  law  of  the 
case,  and  its  determination  of  the  facts  — no  error  of  law  appearing  — is  not  subject  to 
reexamination  in  this  court. 

7.  Section  4281  of  the  Revised  Statutes  of  the  United  States  has  no  reference  to  the 
liability  of  carriers  by  land  for  the  baggage  of  passengers. 

In  error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York. 

Mr.  Justice  Harlan  deUvered  the  opinion  of  the  court.  —  This  is  a 
writ  of  error  to  a  judgment  rendered  against  the  New  York  Central  and 
Hudson  River  Railroad  Company,  in  an  action  to  recover  the  value  of 
certain  articles  of  wearing  apparel  alleged  to  have  been  taken  from  the 
trunk  of  the  defendant  in  error  while  a  passenger  upon  the  cars  of 
the  company,  and  while  the  trunk  was  in  its  charge  for  transportation  as 
part  of  her  baggage.  There  was  evidence  before  the  jury  tending  to 
establish  the  following  facts:  The  defendant  in  error,  a  subject  of  the 
czar  of  Russia,  possessing  large  wealth,  and  enjoying  high  social  posi- 
tion among  her  own  people,  after  travelling  in  Europe,  Asia,  and 
Africa,  spending  some  time  in  London  and  Paris,  visited  America,  in 
the  year  1869,  for  the  double  purpose  of  benefiting  her  health  and  see- 
ing this  country.  She  brought  with  her  to  the  United  States  six  trunks 
of  ordinary,  travel-worn  appearance,  containing  a  large  quantity  of 
wearing  apparel,  including  many  elegant,  costly  dresses,  and  also  rare 
and  valuable  laces  wliich  she  had  been  accustomed  to  wear  upon  differ- 
ent dresses  when  on  visits,  or  frequenting  theatres,  or  attending  din- 


504  passenger's  baggage. 

New  York  Central  and  Hudson  River  Railroad  Company  v.  Fraloff. 

ners,  balls,  or  receptions,  A  portion  of  the  laces  was  made  by  her 
ancestors  upon  their  estates  in  Russia.  After  remaining  some  weeks  in 
the  city  of  New  York,  she  started  upon  a  journey  westward,  going  first 
to  Albany,  and  taking  with  her,  among  other  things,  two  of  the  trunks 
brought  to  this  country.  Her  ultimate  purpose  was  to  visit  a  warmer 
climate,  and  upon  reaching  Chicago,  to  determine  whether  to  visit  Cali- 
fornia, New  Orleans,  Havana,  and  probably  Rio  Janeiro.  After  passing 
a  day  or  so  at  Albany,  she  took  passage  on  the  cars  of  the  New  York 
Central  and  Hudson  River  Railroad  Company  for  Niagara  Falls,  deliv- 
ering to  the  authorized  agents  of  the  company  for  transportation  as  her 
baggage  the  two  trunks  above  described,  which  contained  the  larger 
portion  of  the  dress-laces  brought  with  her  from  Europe.  Upon  arriving 
at  Niagara  Falls  she  ascertained  that  one  of  the  trunks,  during  trans- 
portation from  Albany  to  the  Falls,  had  been  materially  injured,  its 
locks  broken,  its  contents  disturbed,  and  more  than  two  hundred  yards 
of  dress-lace  abstracted  from  the  trunk,  in  which  it  had  been  carefully 
placed  before  she  left  the  city  of  New  York.  The  company  declined 
to  pay  the  sum  demanded  as  the  value  of  the  missing  laces ;  and  having 
denied  all  liability  therefor,  this  action  was  instituted  to  recover  the 
damages  which  the  defendant  in  error  claimed  to  have  sustained  by 
reason  of  the  loss  of  her  property. 

Upon  the  first  trial  of  the  case,  in  1873,^  the  jury,  being  unable  to 
agree,  were  discharged.  A  second  trial  took  place  in  the  year  1875. 
Upon  the  conclusion  of  the  evidence  in  chief  at  the  last  trial,  the  com- 
pany moved  a  dismissal  of  the  action,  and  at  the  same  time  sub- 
mitted numerous  instructions  which  it  asked  to  be  then  given  to  the 
jury,  among  which  was  one  peremptorily  directing  a  verdict  in  its  favor. 
The  motion  was  overruled,  and  the  court  declined  to  instruct  the  jury 
as  requested.  Subsequently,  upon  the  conclusion  of  the  evidence  upon 
both  sides,  the  motion  for  a  peremptory  instruction  in  behalf  of  the 
company  was  renewed,  and  again  overruled.  The  court  thereupon  gave 
its  charge ;  to  which  the  company  filed  numerous  exceptions,  and  also 
submitted  written  requests,  forty-two  in  number,  for  instruction  to  the 
jury.  The  court  refused  to  instruct  the  jury  as  asked,  or  otherwise 
than  as  shown  in  its  own  charge.  To  the  action  of  the  court  in  the 
several  respects  indicated,  the  company  excepted  in  due  form.  The 
jury  returned  a  verdict  against  the  compan}'  for  the  sura  of  §10,000, 
although  the  evidence,  in  some  of  its  aspects,  placed  the  value  of  the 
missing  laces  very  far  in  excess  of  that  amount. 

1  [Probably  1872.    See  Fraloff  v.  New  York  etc.  R.  Co.,  10  Blatch.  16.] 


ARTICLES  OF  GREAT  VALUE.  505 

Supreme  Court  of  the  United  States. 

It  would  extend  this  opinion  to  an  improper  length,  and  could  serve 
no  useful  purpose,  were  we  to  enter  upon  a  discussion  of  the  various 
exceptions,  unusual  in  their  number,  to  the  action  of  the  court  in  the 
admission  and  exclusion  of  evidence,  as  well  as  in  refusing  to  charge 
the  jury  as  requested  by  the  company.  Certain  controlling  propositions 
are  presented  for  our  consideration,  and  upon  their  determination  the 
substantial  rights  of  parties  seem  to  depend.  If,  in  respect  of  these 
propositions,  no  error  was  committed,  the  judgment  should  be  affirmed, 
without  any  reference  to  points  of  a  minor  and  merely  technical  nature, 
which  do  not  involve  the  merits  of  the  case  or  the  just  rights  of  parties. 

In  behalf  of  the  company  it  is  earnestly  claimed  that  the  court  erred 
in  not  giving  a  peremptory  instruction  for  a  verdict  in  its  behalf.  This 
position,  however,  is  wholly  untenable.  Had  there  been  no  serious 
controversy  about  the  facts,  and  had  the  law  upon  the  undisputed  evi- 
dence precluded  any  recovery  whatever  against  the  company,  such  an 
instruction  would  have  been  proper.  ^  The  court  could  not  have  given 
such  an  instruction  in  this  case  without  usurping  the  functions  of  the 
jury.  This  will,  however,  more  clearly  appear  from  what  is  said  in  the 
course  of  this  opinion. 

The  main  contention  of  the  company,  upon  the  trial  below,  was  that 
good  faith  required  the  defendant  in  error,  when  delivering  her  trunks 
for  transportation,  to  inform  its  ngents  of  the  peculiar  character  and 
extraordinary  value  of  the  laces  in  question ;  and  that  her  failure  in 
that  respect,  whether  intentional  or  not,  was  in  itself  a  fraud  upon  the 
carrier,  which  prevented  any  recovery  in  this  action. 

The  Circuit  Court  refused  —  and,  in  our  opinion,  rightly — to  so  instruct 
the  jury.  We  are  not  referred  to  any  legislative  enactment  restricting 
or  limiting  the  responsibility  of  passenger-carriers  by  land  for  articles 
carried  as  baggage ;  nor  is  it  pretended  that  the  plaintiff  in  error  had, 
at  the  date  of  these  transactions,  established  or  promulgated  any  regu- 
lation as  to  the  quantity  or  value  of  baggage  which  passengers  upon  its 
cars  might  carry,  without  extra  compensation,  under  the  general  con- 
tract to  carry  the  person.  Further,  it  is  not  claimed  that  any  inquiry 
was  made  of  the  defendant  in  error,  either  when  the  trunks  were  taken 
into  the  custody  of  the  carrier,  or  at  any  time  prior  to  the  alleged  loss, 
as  to  the  quantity  or  value  of  their  contents.  It  is  undoubtedly  compe- 
tent for  a  carrier  of  passengers,  by  specific  regulations,  distinctly  brought 
to  the  knowledge  of  the  passenger,  which  are  reasonable  in  their  char- 
acter, and  not  inconsistent  with  any  statute  or  its  duties  to  the  public, 

1  Schechardt  v.  Aliens,  1  Wall.  369;  Parks  v.  Ross,  11  How.  372;  Richardson  v.  Boston,  1» 
How.  269;  Pleasants  v.  Fant,  22  Wall.  121. 


506  passenger's  baggage. 


New  York  Central  and  Hudson  River  Railroad  Company  v.  Fraloff. 

to  protect  itself  against  liability,  as  insurer,  for  baggage  exceedin<i 
a  fixed  amount  in  value,  except  upon  additional  compensation  pro- 
portioned to  the  risk.  And  in  order  that  such  regulations  may  be 
practically  effective,  and  the  carrier  advised  of  the  full  extent  of  its 
responsibility,  and  consequently  of  the  degree  of  precaution  necessary 
upon  its  part,  it  may  rightfully  require,  as  a  condition  precedent  to  any 
contract  for  the  transportation  of  baggage,  information  from  the  passen- 
ger as  to  its  value  ;  and  if  the  value  thus  disclosed  exceeds  that  which  the 
passenger  may  reasonably  demand  to  be  transported  as  baggage  without 
€xtra  compensation,  the  carrier,  at  its  option,  can  make  such  additional 
charge  as  the  risk  fairly  justifies.  It  is  also  undoubtedly  true  that  the 
carrier  may  be  discharged  from  liability  for  the  full  value  of  the  passen- 
ger's baggage  if  the  latter,  by  false  statements,  or  by  any  device  or 
artifice,  puts  off  inquiry  as  to  such  value,  whereby  is  imposed  upon  the 
carrier  responsibility  be3'ond  what  it  was  bound  to  assume  in  considera- 
tion of  the  ordinary  fare  charged  for  the  transportation  of  the  person. 
But  in  the  absence  of  legislation  limiting  the  responsibility  of  carriers 
for  the  baggage  of  passengers ;  in  the  absence  of  reasonable  regula- 
tions upon  the  subject  by  the  carrier,  of  which  the  passenger  has  knowl- 
edge ;  in  the  absence  of  inquiry  of  the  passenger  as  to  the  value  of  the 
articles  carried,  under  the  name  of  baggage,  for  his  personal  use  and 
convenience  when  travelling ;  and  in  the  absence  of  conduct  upon  the 
part  of  the  passenger  misleading  the  carrier  as  to  the  value  of  his  bag- 
gage, the  court  cannot,  as  a  mere  matter  of  law,  declare,  as  it  was  in 
effect  requested  in  this  case  to  do,  that  the  mere  failure  of  the  passen- 
ger, unasked,  to  disclose  the  value  of  his  baggage,  is  a  fraud  upon  the 
carrier,  which  defeats  all  right  of  recovery.  The  instructions  asked  by 
the  company  virtually  assumed  that  the  general  law  governing  the  rights, 
duties,  and  responsibilities  of  passenger-carriers  prescribed  a  definite, 
fixed  limit  of  value,  beyond  which  the  carrier  was  not  liable  for  baggage 
except  under  a  special  contract  or  upon  previous  notice  as  to  value. 
We  are  not,  however,  referred  to  any  adjudged  case  or  to  any  element- 
ary treatise  which  sustains  that  proposition  without  qualification.  In 
the  very  nature  of  things,  no  such  rule  could  be  established  by  courts  in 
virtue  of  any  inherent  power  they  possess.  The  quantity  or  kind  or 
value  of  the  baggage  which  a  passenger  may  carry  under  the  contract 
for  the  transportation  of  his  person  depends  upon  a  variety  of  circum- 
stances, which  do  not  exist  in  every  case.  "That  which  one  traveller," 
says  Erle,  C.  J.,  in  Phelps  v.  London,  etc.  Railway  Company,^  "would 

»  19  C.  B.  (N.  S.)  321. 


ARTICLES  OF  GREAT  VALUE.  507 

Supreme  Court  of  the  United  States. 

consider  indispensable  would  be  deemed  superfluous  and  unnecessary  by 
another.     But  the  general  habits  and  wants  of  mankind  will  be  taken  in 
the  mind  of  the  carrier  when  he  receives  a  passenger  for  conveyance." 
Some  of  the  cases  seem  to  announce  the  broad  doctrine  that,  by  general 
law,  in  the  absence  of  legislation,  or  special  regulations  by  the  carrier 
of  the  character  indicated,  a  passenger  may  take,  without  extra  compen- 
sation, such  articles  adapted  to  personal  use  as  his  necessities,  comfort, 
■convenience,  or  even  gratification  may  suggest ;  and  that,  whatever  may 
be  the  quantity  or  value  of  such  articles,  the  carrier  is  responsible  for 
all  damages  or  loss  to  them  from  whatever  source,  unless  from  the  act 
of  God  or  the  public  enemy.     But  that,  in  our  judgment,  is  not  an 
accurate  statement  of  the  law.     Whether  articles  of  wearing  apparel,  in 
any  particular  case,  constitute  baggage,  as  that  term  is  understood  in 
the  law,  for  which  the  carrier  is  responsible  as  insurer,  depends  upon 
the  inquiry  whether  they  are  such  in  quantity  and  value  as  passengers 
under  like  circumstances  ordinarily  or  usually  carry  for  personal  use 
when  travelling.     "The  implied   undertaking,"  says  Mr.  Angell,  "of 
the  proprietors  of  stage-coaches,  railroads,  and  steamboats  to  carry  in 
safety  the  baggage  of  passengers  is  not  unlimited,  and  cannot  be  ex- 
tended beyond  ordinary  baggage,  or  such  baggage  as  a  traveller  usually 
carries  with  him  for  his  personal  convenience."  ^   In  Hannibal  Railroad  v. 
Swift,^  this  court,  speaking  through  Mr.  Justice  Field,  said  that  the  con- 
tract to  carry  the  person  "  only  implies  an  undertaking  to  transport  such 
a  limited  quantity  of  articles  as  are  ordinarily  taken  by  travellers  for  their 
personal  use  and  convenience,  such  quantity  depending,  of  course,  upon 
the  station  of  the  party,  the  object  and  length  of  his  journey,  and  many 
other  considerations."     To  the  same  effect  is  a  decision  of  the  Queen's 
Bench  in  Macrow  v.  Great  Western  Railway  Company,^  where  Cockburn, 
C.  J.,  announced  the  true  rule  to  be  "  that  whatever  the  passenger  takes 
with  him  for  his  personal  use  or  convenience,  according  to  the  habits  or 
wants  of  the  particular  class  to  which  he  belongs,  either  with  reference 
to  the  immediate  necessities  or  to  the  ultimate  purpose  of  the  journey, 
must  be  considered  as  personal  luggage."  *     To  the  extent,  therefore, 
that  the  articles  carried  by  the  passenger  for  his  personal  use  exceed  in 
quantity  and  value  such  as  are  ordinarily  or  usually  carried  by  passen- 
gers of  like  station  and  pursuing  like  journeys,  they  are  not  baggage  for 
which  the  carrier,  by  general  law,  is  responsible  as  insurer.     In  cases 
of  abuse  by  the  passenger  of  the  privileges  which  the  law  gives  him,  the 
carrier  secures  such  exemption  from  responsibility ;  not,  however,  be- 

»  Ang.  on  Car..  §  115.  «  12  Wall.  275.  »  L.  K.  6  Q.  B.  612.         <  2  Pars,  on  Con.  199. 


508  passenger's  baggage. 


New  York  Central  and  Hudson  Kiver  Railroad  Company  v.  Fraloff. 

cause  the  passenger,  uninquired  of,  failed  to  disclose  the  character  and 
value  of  the  articles  carried,  but  because  the  articles,  being  themselves 
in  excess  of  the  amount  usually  or  ordinarily  carried  under  like  circum- 
stances, would  not  constitute  baggage  within  the  true  meaning  of  the 
law.  The  laces  in  question  confessedly  constituted  a  part  of  the  wear- 
ing apparel  of  the  defendant  in  error.  They  were  adapted  to,  and 
exclusively  designed  for,  personal  use,  according  to  her  convenience, 
comfort,  or  taste,  during  the  extended  journey  upon  which  she  had 
entered.  They  were  not  merchandise ;  nor  is  there  any  evidence  that 
they  were  intended  for  sale,  or  for  purposes  of  business.  "Whether  they 
were  such  articles,  in  quantity  and  value,  as  passengers  of  like  station 
and  under  like  circumstances  ordinarily  or  usually  carry  for  their  per- 
sonal use,  and  to  subserve  their  convenience,  gratification,  or  comfort 
while  travelling,  was  not  a  pure  question  of  law  for  the  sole  or  final 
determination  of  the  court,  but  a  question  of  fact  for  the  jury,  under 
proper  guidance  from  the  court  as  to  the  law  governing  such  cases.  It 
was  for  the  jury  to  say  to  what  extent,  if  any,  the  baggage  of  defendant 
in  error  exceeded  in  quantity  and  value  that  which  was  usually  carried 
without  extra  compensation,  and  to  disallow  any  claim  for  such  excess. 
Upon  examining  the  carefully  guarded  instructions  given  to  the  jury, 
we  are  unable  to  see  that  the  court  below  omitted  any  thing  essential  to 
a  clear  comprehension  of  the  issues,  or  announced  any  principle  or  doc- 
trine not  in  harmony  with  settled  law.  After  submitting  to  the  jury  the 
disputed  question  as  to  whether  the  laces  were  in  fact  in  the  trunk  of 
the  defendant  in  error  when  delivered  to  the  company  in  Albany  for 
transportation  to  Niagara  Falls,  the  court  charged  the  jury,  in  substance, 
that  every  traveller  was  entitled  to  provide  for  the  exigencies  of  his 
journey  in  the  way  of  baggage ;  was  not  limited  to  articles  which  were 
absolutely  essential,  but  could  carry  such  as  were  usually  carried  by 
persons  travelling  for  their  comfort,  convenience,  and  gratification  upon 
such  journeys ;  that  the  liability  of  carriers  could  not  be  maintained  to 
the  extent  of  making  them  responsible  for  such  unusual  articles  as  the 
exceptional  fancies,  habits,  or  idiosyncracies  of  some  particular  indi- 
vidual may  prompt  him  to  carry ;  that  their  responsibility  as  insurers 
was  limited  to  such  articles  as  it  was  customary  or  reasonable  for 
travellers  of  the  same  class  in  general  to  take  for  such  journeys  as  the 
one  which  was  the  subject  of  inquiry,  and  did  not  extend  to  those 
which  the  caprice  of  a  particular  traveller  might  lead  that  traveller  to 
take ;  that  if  the  compan}'  dehvered  to  the  defendant  in  error,  aside 
from  the  laces  in  question,  baggage  which  had  been  carried,  and  which 
was  sufficient  for  her  as  reasonable  baggaa^e  within  the  rules  laid  down, 


ARTICLES  OF  GREAT  VALUE.  509 

Supreme  Court  of  the  United  States. 

she  was  not  entitled  to  recover ;  that  if  she  carried  the  laces  in  question 
for  the  purpose  of  having  them  safely  kept  and  stored  by  railroad  com- 
panies and  hotel-keepers,  and  not  for  the  purpose  of  using  them  as 
occasion  might  require  for  her  gratification,  comfort,  or  convenience, 
the  company  was  not  liable ;  that  if  any  portion  of  the  missing  articles 
was  reasonable  and  proper  for  her  to  carry,  and  all  was  not,  they  should 
allow  her  the  value  of  that  portion. 

Looking  at  the  whole  scope  and  bearing  of  the  charge,  and  interpret- 
ing what  was  said  as  it  must  necessarily  have  been  understood  both  by 
the  court  and  jury,  we  do  not  perceive  that  any  error  was  committed  to 
the  prejudice  of  the  company,  or  of  which  it  can  complain.  No  error 
of  law  appearing  upon  the  record,  this  court  cannot  reverse  the  judg- 
ment because,  upon  examination  of  the  evidence,  we  may  be  of  the 
opinion  that  the  jury  should  have  returned  a  verdict  for  a  less  amount. 
If  the  jury  acted  upon  a  gross  mistake  of  facts,  or  were  governed  by 
some  improper  influence  or  bias,  the  remedy  therefor  rested  with  the 
court  below,  under  its  general  power  to  set  aside  the  vei'dict.  But  that 
court  finding  that  the  verdict  was  abundantly  sustained  by  the  evidence, 
and  that  there  was  no  ground  to  suppose  that  the  jury  had  not  per- 
formed their  duty  impartially  and  justly,  refused  to  disturb  the  verdict, 
and  overruled  a  motion  for  a  new  ti'ial.  Whether  its  action  in  that 
particular  was  erroneous  or  not,  our  power  is  restricted  by  the  Consti- 
tution to  the  determination  of  the  questions  of  law  arising  upon  the 
record.  Our  authority  does  not  extend  to  a  reexamination  of  facts 
which  have  been  tried  by  the  jury  under  instructions  correctly  defining 
the  legal  rights  of  parties.' 

It  is  perhaps  proper  to  refer  to  one  other  point  suggested  in  the 
elaborate  brief  of  counsel  for  the  company.  Our  attention  is  called 
to  §  4281  of  the  Revised  Statutes,  which  declares  that  "if  any  ship- 
per of  platina,  gold,  gold-dust,  *  *  *  coins,  jewelry,  *  *  * 
trinkets,  *  *  *  silks  in  a  manufactured  or  unmanufactured  state, 
and  whether  wrought  up  or  not  wrought  up  with  any  other  material,  furs 
or  lace,  or  an}^  of  them,  contained  in  any  parcel,  or  package,  or  trunk, 
shall  lade  the  same  as  freight  or  baggage  on  any  vessel,  without  at  the 
time  of  such  lading  giving  to  the  master,  clerk,  agent,  or  owner  of  such 
vessel  receiving  the  same  a  written  notice  of  the  true  character  and 
value  thereof,  and  having  the  same  entered  on  the  bill  of  lading  therefor, 
the  master  and  owner  of  such  vessel  shall  not  be  liable  as  carriers 
thereof  in  any  form  or  manner ;  nor  shall  any  such  master  or  owner  be 

•  Parsons  v.  Bedford,  3  Pet.  446;  Barreda  v.  Silsbee,  21  How.  167;  Insurance  Co.  v. 
Folsom,  18  Wall.  i249. 


510  passenger's  baggage. 


Notes. 


liable  for  any  such  goods  beyond  the  value  and  according  to  the  char- 
acter thereof,  so  notified  and  entered." 

It  is  sufficient  to  say  that  that  section  has  no  application  whatever  to 
this  case.  It  lias  reference  alone  to  the  liability  of  carriers  by  water 
who  transport  goods  and  merchandise  of  the  kind  designated.  It  has 
no  reference  to  carriers  by  land,  and  does  not  assume  to  declare  or 
restrict  their  liability  for  the  baggage  of  passengers. 

Mr.  Justice  Field. — I  dissent  from  the  judgment  of  the  court  in 

this  case.     I  do  not  think  that  two  hundred  and  seventy-five  yards  of 

lace,  claimed  by  the  owner  to  be  worth  $75,000  and  found  by  the  jury 

to  be  of  the  value  of  $10,000,  can,  as  a  matter  of  law,  be  properl}' 

considered  as  baggage  of  a  passenger,  for  the  loss  of  which  the  railroad 

company,  in  the  absence  of  any  special  agreement,  should  be  held  liable  ; 

and  I  am  authorized  to  state  that  Mr.  Justice  Miller  and  Mr.  Justice 

Strong  concur  in  this  view. 

Judgment  affirmed. 


NOTES. 

§  1 .  What  is  Baggage  —  A  Mixed  Question  of  Law  and  Fact.  —  The  contract 
of  the  carrier,  as  seen  above,  is  to  carry  the  passenger  and  Ids  personal  baggage. 
It  is  evident  tliat  in  many  cases  it  will  become  material  to  determine  what  arti- 
cles personal  baggage  may  consist  of,  and  many  of  the  decisions  on  the  subject 
of  passengers'  baggage  turn  upon  this  question.  It  is  a  mixed  question  of  law 
and  fact,  to  be  determined  by  the  jury,  under  proper  instructions  from  the  court.^ 
It  is  of  course  impossible  to  give  any  general  rule,  which  will  be  equally  appli- 
cable to  all  cases,  for  the  determination  of  what  is  and  what  is  not  properly 
baggage.  This  depends  to  a  very  great  extent  upon  the  circumstances  of  each 
individual  case,  upon  the  length  of  the  journey,  the  purpose  for  which  it  is  made, 
the  position  in  life  and  occupation  of  the  traveller,  the  mode  of  conveyance, 
and  the  character  of  the  country  through  which  he  intends  to  pass.  The  adjudi- 
cated cases  on  this  subject  justify  the  statement  that  any  thiug  may  be  carried 
as  personal  baggage  which  travellers  usually  carry  for  their  personal  use,  com- 
fort, instruction,  or  amusement,  having  regard  to  the  circumstances  enumerated 
above.''    Thus,  while  it  would  be  manifestly  improper  to  permit  a  business  man, 

1  Brock   V.  Gale,  14   Fla.  523;   Dibble  v.  cuse  etc.  R.  Co.,  42  N.  T.  326;  Gleason  v. 

Brown,  12  Ga.  217;  Parmalee  v.  Fisher,  22  Goodrich  Transp.  Co.,  32  Wis.  85;  Del  Valle 

lU.  212;  New  York  etc.  R.  Co.  v.  Fraloff,  20  v.  Str.  Richmond,  27  La.  An.  90;  Hutchiugi 

Alb.  L.  J.  409;  s.  c.  9  Cent.  L.  J.  432;  8  Re-  v.  VV'esieni  etc.  R.  Co.,  25  Ga.  61;  Macrow  v. 

porter,  801 ;  ante,  p.  502.  Great  Western  R.  Co.,  L.  R.  6  Q.  B.  612;  s.  c. 

-  Parmalee  i;.  Fischer,  22  IlL  212;  Dibble  40  L.  J.  (C.  P.)  300;  2-t  L.  T.   (N.  S.)  618;  19 

V.  Brown,   12  Ga.  217;    American  Contract  Week.  Rep.  S73;   .Mississippi  etc.  R.  Co.  v. 

Corp.  t!.  Cross,  8  Bush,  472;  Cincinnati  etc.  Kennedy,  41  Miss.  671;  Toledo  etc.  R.  Co.  t;. 

E.  Co.  v.  Marcus,  38  III.  219;  Dexter  v.  Syra-  Hammond,   33  Ind.  379;    Wilson    v.  Grand 


WHAT    IS    BAGGAGE. 


511 


Articles  which  are  not. 


making  a  short  trip  upon  a  railway,  to  recover  for  bedding  packed  with  his  bag- 
gage, yet  it  was  held  in  the  case  of  a  steerage-passenger  upon  a  sea  voyage,  wha 
was  bound  to  provide  his  own  bedding,  that  a  reasonable  amount  of  such  arti- 
cles properly  constituted  a  part  of  his  baggage,  and,  if  lost,  was  the  subject  of 
recovery.' 

§  2.  Articles  which  cannot  be  considered  as  Baggage.  —  From  the  principle* 
above  set  out,  it  is  obvious  that  there  are  some  articles  which  are  never  to  be 
considered  as  baggage.  It  has  been  decided  in  a  multitude  of  cases  that  a  pas- 
senger cannot  carry  merchandise  in  his  baggage,  to  avoid  the  payment  of  freight 
upon  it,  and  recover  for  its  loss  against  the  carrier.^  And  this  rale  extends  ta 
the  samples  carried  by  a  travelling  salesman  while  "upon  the  road."  ^  Beyond 
a  small  amount  sufficient  for  travelling  expenses  merely,  money,  whether  in 
bank-notes  or  specie,  is  not  properly  baggage.*  And  in  some  instances  it  has 
been  held  that  even  small  amounts  for  travelling  expenses  are  not  properly 
packed  in  baggage.*  But  the  weight  of  authority  is  to  the  contrary.*  What 
is  a  reasonable  amount  of  money  for  travelling  expenses  depends  upon  the 
length  of  the  journey,  the  mode  of  travel,  and  the  position  in  life  of  the  pas- 
senger, and  should  not  exceed  what  a  prudent  person  would  take  with  him  under 
the  circumstances.    What  such  an  amount  is,  is  a  question  for  the  jury.'' 


Trunk  R.  Co.,  56  Me.  60;  Walsh  v.  Str.  H.  M. 
Wright,  1  Newb.  Adm.  494;  Cadwallader  v. 
Grand  Trunk  R.  Co.,  9  Lower  Canada  Rep. 
1G9 ;  New  Orleans  etc.  R.  Co.  v.  Moore,  40  Miss. 
;!9;  Pardee  v.  Drew,  25  Wend.  459. 

1  Hirschsohn  v.  Hamburgh  American  Pkt. 
Co.,  2  Jones  &  Sp.  521. 

-  Cahill  V.  London  etc.  R.  Co.,  10  C.  B.  (n. 
.«.)  154;  8.  c.  7  Jur.  (N.  S.)  1164;  30  L.  J.  (C. 
P.)  289;  9  Week.  Rep.  653;  4  L.  T.  (N.  S.) 
246  (affirmed  ou  appeal,  13  C.  B.  (n.  s.)  818; 

8  Jur.  (N.  8.)  1063;  31  L.  J.  (C.  P.)  271;  10 
Week.  Rep.  391) ;  Belfast  etc.  R.  Co.  v.  Keys, 

9  H.  L.  Cas.  556;  s.  c.  8  Jur.  (N.  s.)  367;  9 
Week.  Rep.  793;  4  L.  T.  (n.  s.)  841;  Great 
Northern  R.  Co.  v.  Shepherd,  8  Exch.  30;  s. 
c.  7  Eng.  Rail.  Cas.  310;  21  L.  J.  (Exch.)  286; 
Mississippi  etc.  R.  Co.  v.  Kennedy,  41  Jliss. 
671;  Collins  v.  Boston  etc.  Ji.  Co.,  10  Cush. 
506;  Dibble  v.  Brown,  12  Ga.  217;  Smith  v. 
Boston  etc.  R.  Co.,  44  N.  H.  32i'> ;  Bell  v.  New- 
ton, 4  E.  D.  Smith,  59;  Pardse  v.  Drew,  25 
Wend.  459;  Hutchings  v.  Western  etc.  R. 
Co.,  25  Ga.  61 ;  Michigan  etc.  It.  Co.  v.  Oehm, 
56111.  293;  Michigan  etc.  R.  Co.  v.  Carrow,  73 
111.  348;  Richards  v.  Westcott,  2  Bosw.  589; 
Ross  V.  Missouri  etc.  R.  Co.,  4  Mo.  App.  583; 
Lee  V.  Grand  Trunk  R.  Co.,  36  Upper  Canada 
Q.  B.  350;  Beckman  v.  Shouse,  5  R  wle,  179; 
Blumantle  v.  Fitchburg  R.  Co.,  20  Alb.  L.  J. 
304. 

3  Stimpson  v.  Connecticut  River  R.  Co.,  98 
Mass.  83;  Hawkins  v.  Hoffman,  6  Hill,  586; 
Ailing  V.  Boston  etc.  R.  Co.,  126  Mass.  121;  ». 
; .  7  He'«oi-tC'-,  f.-^o  :   19  .\lb.  L.  J.  2'li. 


*  Phelps  V.  London  etc.  R.  Co.,  19  C.  B. 
(N.  8.)  321;  s.  c.  11  Jur.  (N.  S.)  652;  34  L.  J. 
(C.  P.)259;  13  Week.  Rep.  782;  12  L.  T.  (N. 
s.)  496;  Butcher  v.  London  etc.  R.  Co., 
16  C.  B.  13;  1  Jur.  (N.  S.)  427;  24  L.  J.  (C. 
P.)  137;  Grant  v.  Newton,  1  E.  D.  Smith, 
95;  Whitmore  v.  Str.  Caroline,  20  Mo.  513; 
Merrill  v.  Grinnell,  30  N.  Y.  594;  Bomar 
V.  Maxwell,  9  Humph.  621 ;  Doyle  v.  Kiser,  6 
Ind.  242;  Jordan  v.  Fall  River  R.  Co.,  5  Cush. 
69;  Dunlap  v.  International  Steamboat  Co., 
98  Mass.  371;  Dibble  v.  Brown,  12  Ga.  217; 
Hellman  v.  Holladay,  1  Woolw.  365;  Hutch- 
ings V.  Western  etc.  R.  Co.,  25  Ga.  61 ;  Hickox 
V.  Naugatuck  R.  Co.,  31  Conn.  281 ;  The  Ionic, 
5  Bhitchf.  538;  Senecal  v.  Richelieu  Co.,  15 
Lower  Canada  Jur.  1 ;  Orange  County  Bank 
V.  Brown,  9  Wend.  85;  Davis  v.  Michigan 
etc.  R.  Co.,  22  111.  278. 

s  Grant  v.  Newton,  1  E.  D.  Smith,  95; 
Davis  V.  Michigan  etc.  R.  Co.,  22  111.  278. 

«  Merrill  v.  Grinnell,  .30  N.  Y.  594;  Bomar 
V.  Maxwell,  9  Humph.  621;  Johnson  v.  Stone, 
11  Humph.  419;  Doyle  v.  Kiser,  6  Ind.  242; 
Jordan  v.  Fall  River  R.  Co.,  5  Cush.  69 ;  Duffy 
V.  Thompson,  4  E.  D.  Smith,  178;  Weed  v. 
Saratoga  etc.  R.  Co.,  19  Wend.  534;  Cincin- 
nati etc.  R.  Co.  V.  Marcus,  38  111.  219;  Torpey 
V.  Williams,  3  Daly,  162;  Hickox  v.  Nauga- 
tuck etc.  R.  Co.,  31  Conn.  281;  Illinois  etc. 
K.  Co.  V.  Copeland,24  111.  .332;  Cadwallader 
V.  Grand  Trunk  R.  Co., !)  Lower  Canada  Rep. 
169;  Orange  County  Bank  v.  Brown,  9  Wend. 

sa. 

'■  Merrill  v.  Grinnell,  supra;  Johnson  v 


512  passenger's  baggage. 


Notes. 


Gold  and  silver  bullion,  silver- ware,  plate,  watches,  jewelry,  and  precious  stones, 
other  than  what  is  intended  to  be  worn  on  the  person  of  the  passenger,  cannot 
be  considered  as  baggage. i  If  the  articles  are  such  as  are  usually  worn  about  the 
person,  there  seems  to  be  no  reason  why  they  may  not  be  properly  packed  with 
his  baggage  whUe  travelling.^  The  property  of  another  person  cannot  be  carried 
as  a  passenger's  baggage ;  ^  and  this,  nowithstanding  the  other  is  also  a  passen- 
ger upon  the  same  boat.*  But  where  several  members  of  a  family  are  travelling 
together,  it  seems  that  one  of  them  may  carry  articles  which  are  the  property  of 
the  others  as  his  baggage.*  Articles  intended  by  the  passenger  as  presents  to 
his  friends  at  the  end  of  his  journey  are  not  baggage.*  A  child's  toy-horse  is 
not  baggage ; '  nor  are  Masonic  regalia,  nor  engravings ;  ^  nor  are  valuable 
papers,  though  carried  by  a  lawyer  on  his  way  to  court,  and  intended  to  be  used 
in  the  trial  of  a  cause  there.*  Bedding,  as  seen  above,  may  sometimes  be 
considered  baggage,  —  as  in  the  case  of  a  steerage-passenger  bound  to  provide 
his  own  accommodations  for  sleeping,i°  —  but  ordinarily  such  articles  should  be 
shipped  as  freight ;  without  some  such  peculiar  circumstances,  they  cannot  be 
considered  as  within  the  scope  of  the  carrier's  contract  with  the  passenger." 
Dogs,  it  seems,  are  not  baggage.  But  where  the  passenger  placed  his  dog  in 
charge  of  the  baggageman  on  a  train,  and  paid  for  his  transportation,  without 
notice  of  a  rule  that  such  fees  were  baggagemen's  perquisites,  it  was  held  that 
he  was  entitled  to  recover  of  the  company  for  the  loss  of  the  dog.** 

§  3.  Articles  which  are  comprehended  tmder  the  Term  "  Baggage." — Among 
the  articles  of  comfort,  convenience,  instruction,  or  amusement  which  a  travel- 
Stone,  supra;  Jordan  v.  Fall  River  R.  Co.,  capro  etc.  R.  Co.  v.  Boyce,  73  111.  510;  Dexter 
supra;  Duffy  v.  Thompson,  supra;  Weed  v.  r.  Syracuse  etc.  R.  Co.,  42  N.  Y.  3'26;  First 
Saratoga  etc.  R.  Co.,  supra.  National  Bank  v.  Marietta  etc.  B.  Co.,  20 

1  Bell  V.  Drew,  4  E.  D.  Smith,  59;  Cincin-  Ohio  6t.  200;  Mississippi  etc.  R.  Co.  v.  Ken- 
nati  etc.  R.  Co.  v.  Marcus,  38  111.  219;  Hell-        ncdy,  41  Miss.  671. 

man  v.  HoUaday,  1  Woolw.  365;  Torpey  v.  ^  Dunlap  i;.  International  Steamboat  Co., 

Williams,  3  Daly,  162;  The  Ionic,  5  Blatchf.  98  Mass.  .371. 

538;  Walsh  v.  Str.   H.  M.  Wright,  1  Newb.  ••  Dexter  v.  Syracuse  etc.  R.  Co.,  42  N.  Y. 

Adm  494;  Steers  v.  Liverpool  etc.  R.  Co.,  57  326;  Curtis  v.  Delaware  etc.  R.  Co.,  74  N.  Y. 

K.  Y.  1;  Nevins  v.  Bay  State  Steamboat  Co.,  116. 

4Bosw.  225;  Michigan  etc.  R.  Co.  i'.  Carrow,  ^  Nevins  v.  Bay  State  Steamboat  Co.,  4 

73  111.  348;  Cadwallader  v.  Grand  Trunk  R.  Bosw.  225;  The  Ionic,  5  Blatchf.  538. 

Co.,  9  Lower  Canada  Rep.  169.  '  Hudston  v.  Midland  etc.  B.  Co.,  10  Best 

2  McCormick  v.  Hudson  River  R.  Co.,  4  E.  &  S.  504 ;  s.  c.  L.  R.  4  Q.  B.  366. 

D.  Smith,  181;  McGill  v.  Rowand,  3  Pa.  St.  *  Nevins   v.  Bay  State  Steamboat  Co.,  4 

451;  Jones  v.  Voorhees,  10  Ohio,  145;  Ameri-  Bosw.  225. 

can   Contract   Co.    ■;;.    Cross,  8   Bush,    472;  »  Phelps  v.  London  etc.  R.  Co.,  19  C.  B. 

Brooke  v.  Pickwick,  4  Bing.  218;  Fraloff  v.  (N.  s.)  321;  s.  c.  11  Jur.   (N.  S.)  652;  34  L.  J. 

New  York  etc.  R.  Co.,  10  Blatchf.  16;  Torpey  (O.  P.)  259;  13  Week.  Rep.  782;  12  L.  T.  (N. 

V.  Williams,  3  Daly,  162;  McDougall  v.  Tor-  s.)  496;  Thomas  v.  Great  Western  R.  Co.,  14 

ranee,   4  Lower   Canada    Jur.    132.    Aliter,  Upper  Canada  Q.  B.  389. 

Bomar  v.  Maxwell,  9  Humph.  621;  McDou-  i**  Hirschsohn     v.    Hamburgh    American 

gall  V.  Allan,  6  Lower  Canada  Jur.  233;  s.  c.  Packet   Co.,  2  Jones  &  Sp.  521.     And  see 

12  Lower  Canada  Rep.  321.  Ouimit  v.  Henshaw,  35  Vt.  604. 

s  Dunlap  v.  International  Steamboat  Co.,  ''  Macrow  v.  Great  Western  R.  Co.,  L.  B.  6 

98  Mass.  371;  Weed  v.  Saratoga  etc.  R.  Co.,  Q.  B.  612;  s.  c.  40  L.  J.  (Q.  B.)  300;  24  L.  T. 

19  Wend.  534;  Becher  v.  Great  Eastern  R.  (n.  S.)  618;  19  Week.  Rep.  673;  Connolly  v. 

Co.,  L.  R.  5  Q.  B.  241 ;  s.  c.  22  L.  T.  (N.  s.)  299;  Warren,  106  Mass.  146. 

18  Week.  Rep.  627;  39  L.  J.  (Q.  B.)  122;  Chi-  12  Cantling  v.  Hannibal  etc.  K.  Co.,  54  Mo. 

385. 


.    CUSTODY    OF    THE    BAGGAGE.  513 


Delivery  to  the  Carrier — "Booking,"  "Checking." 

ler  may  properly  cai'ry  as  baggage,  clothing  for  the  passenger  has  been  held  to  be 
properly  included.^  It  is  not  necessary  that  the  clothes  should  be  ready  for  use. 
A  quantity  of  cloth  cut  up  into  patterns  for  garments  are  wearing  apparel  within 
the  meaning  of  the  rule.''  The  application  of  the  rule  seems  to  be  quite  liberal 
in  the  matter  of  fire-arms.  An  early  case  in  Illinois  is  authority  for  the  doctrine 
that  a  pocket-pistol  and  a  pair  of  duelling  pistols  are  proper  articles  of  baggage 
for  a  gentleman. 3  But  in  a  later  case  the  court  were  of  opinion  that  one  revolver 
was  sufficient  to  protect  a  grocer  going  into  the  country  to  buy  butter.*  Guns 
for  sporting  purposes  are  proper  baggage  for  a  passenger  from  Europe  to  New 
York.*  A  few  books  for  amusement  on  the  journey  are  properly  baggage ;  ^  and 
so  are  manuscript  books,  the  property  of  a  student,  and  necessary  to  the  prose- 
cution of  his  studies.''  But  the  manuscript  of  a  work  intended  for  publication  is 
not.8  An  opera-glass  may  be  included  in  baggage,  although  the  entire  journey 
be  made  at  night ;  ®  and  so  may  night-glasses  or  telescopes,  on  the  presumption 
that  the  passenger  may  reasonably  have  thought  they  would  be  useful  to  him  in 
the  course  of  an  intended  voyage  across  the  Atlantic.'"  A  reasonable  quantity  of 
his  tools  is  proper  baggage  for  a  mechanic ; ''  and  so  is  a  case  of  surgical  instru- 
ments for  a  surgeon  in  the  United  States  army  travelling  with  troops. '^  A  few 
cases  have  arisen  as  to  the  baggage  of  troops  transported  for  the  government 
by  a  common  carrier,  but  these  are  sui  juris,  being  governed  by  special  acts 
and  army  regulations,  and  a  discussion  of  them  is  apart  from  this  subject." 

§  4.  Custody  of  the  Baggage  —  "Booking"  and  "Checking."  —  The  idea 
that  lies  at  the  foundation  of  the  extraordinary  liability  of  the  carrier  is  that 
the  baggage  is  in  his  custody  and  under  his  control  during  transportation. 
Hence,  in  order  to  hold  him  responsible  for  its  loss,  it  is  material  to  show  that  it 
came  into  his  possession.'*  Thus,  to  charge  a  carrier  with  the  loss  of  personal 
ornaments  packed  in  a  trunk  with  the  baggage  of  the  owner,  it  must  satisfac- 
torily appear  that  the  trunk  was  not  rifled  after  it  was  so  packed,  and  before  it 
reached  the  possession  of  the  carrier.'* 

1  Munsterv.  South-EasternR.  Co.,  4  C.  B.  '"  Cadwallader  v.  Grand  Trunk  R.  Co.,  9 
(N.  8.)  676;  5.  c.  4  Jur.  (N.  8.)  738;  27  L.  J.  (C.  Lower  Canada  Rep.  169. 

P.)308;Duffy«>.  Thompson, 4E. D.Smith, 178;  "  Porter  v.  Hildebrand,  14  Pa.  St.  129;  Da- 
Doyle  V.  Kiser,  6  Ind.  242;  Dibble  v.  Brown,  vis  v.  Cayuga  etc.  R.  Co.,  10  How.  Pr.  330. 

12  Ga.  217;  Baltimore  etc.  R.  Co.  v.  Smith,  '^  Hannibal  etc.  R.  Co.  r.  Swift,  12  Wall.  262. 

23  Md.  402.  '8  See  Hannibal  etc.   R.  Co.  v.  Swift,   12 

2  Duffy  I'.  Thompson,  4  E.  D.  Smith,  178.  Wall.  262.  In  England,  "public  baggage, 
8  Woods  V.  Devin,  13  111.  746.  stores,  arms,"  etc.,  sent  by  railway  in  charge 
*  Chicago  etc.  R.  Co.  v.  Collins,  56  111.  212.  of  any  of  her  majesty's  forces  specified  in 

See  also  Davis  v.  Michigan  etc.  R.  Co.,  22  the7and8Vict.,c.85,  §12,  is  "their  baggage," 

111.  278.  no  matter  what  may  be  the  disproportion  be- 

6  Van  Horn  v.  Kermit,  4  E.  D.  Smith,  4.54.  tween  the  amount  of  baggage  and  the  num- 

See  also  Hawkins  v.  Hoffman,  6  Hill,  586;  ber  of  the  force  in  charge  of  it,  and  must  be 

Davis  V.  Cayuga  etc.  K.  Co.,  10   How.  Pr.  carried  by  the  railway  company  at  the  rates 

330.  inijiosed  by  that  section. 

«  Doyle  r.  Kiser,  6  Ind.  242.  n  McQuestcn    v.   Sandford,    40    Me.    117; 

'  Hopkins  «;.  Westcott,  0  Blatchf.  64.  Forbes  v.    Davis,  18   Texas,   268;  Moore  w. 

8  Hannibal  etc.  R.  Co.  v.  Swift,  12  Wall.  Str.  Evening  Star,  20  La.  An.  402;  Gleason  v. 

262.  Goodrich  Transp.  Co.,  32  Wis.  85;  Michigan 

»  Toledo  etc.  R.  Co.  v.  Hammond,  33  Ind.  et(;.  K.  Co.  v.  Meyres,  21  111.  627. 

379.  '•''  McQuesten  v.  Sandford,  supra. 

'33 


514  "  passenger's  baggage. 


Notes. 


In  this  country  it  is  customary  upon  railroads,  and  sometimes  upon  steamboats, 
to  give  the  passenger  a  bit  of  brass  metal  with  a  number  upon  it,  a  duplicate  of 
which  is  attached  to  his  baggage.  This  is  called  a  baggage-" check,"  audits 
delivery  is  primd,  facie  evidence  that  the  carrier  has  received  the  baggage  which 
it  represents.*  Such  evidence,  of  course,  may  be  overcome  by  proof  to  the 
contrary ;  but  the  burden  of  proof  under  such  circumstances  is  upon  the  carrier 
to  show  non-delivery.2  And  it  is  immaterial  at  what  time  the  baggage  comes 
into  the  possession  of  the  carrier,  —  whether  at  the  time  the  check  is  issued  or 
subsequently.  In  either  case  its  liability  as  an  insurer  becomes  fixed  in  case  of 
loss.*  The  effect  and  extent  to  which  a  baggage-check  is  evidence  is  well  illus- 
trated by  a  case  where  it  appeared  that  a  railway  company  received  a  passenger's 
check  for  baggage  which  had  not  then  arrived  by  another  road,  and  gave  its  own 
check  for  the  same,  and  that  it  had  surrendered  the  passenger's  first  check  to  the 
other  railway  company.  The  court  held  this  sufficient,  in  the  absence  of  proof 
to  the  contrary,  to  show  that  the  baggage  was  received  by  the  company  so  sur- 
rendering the  first  check.* 

But  the  delivery  of  a  check  is  not  the  only,  or  necessarily  the  best,  evidence  of 
the  receipt  of  the  baggage.  With  the  assent  of  the  carrier,  the  baggage  of  trav- 
ellers may  be  left  at  a  railway  station  without  notice  to  it  or  its  agents ;  such 
assent  may  be  implied  from  the  course  of  business  or  custom  of  the  carrier.* 
And  though  a  regulation  of  the  carrier  may  require  that  the  baggage  of  passen- 
gers must  be  checked,  yet  the  carrier  cannot  avail  himself  of  a  failure  to  comply 
with  this  regulation  if  it  appears  that,  at  the  time  of  the  delivery  of  the  baggage 
to  the  carrier's  agent,  the  passenger  demanded  a  check,  and  failed  to  receive  it 
because  the  person  whose  duty  it  was  to  check  baggage  was  not  present.*  A 
corresponding  rule  obtains  in  England,  where  a  system  of  "booking"  baggage 
supplies  the  place  of  the  checking  system  of  this  country.  It  was  held,  in  an 
action  for  lost  baggage,  that  a  railway  company  could  not  take  advantage  of  a 
failure  of  the  passenger  to  comply  with  a  by-law  of  the  company  requiring  bag- 
gage to  be  "  booked,"  in  the  absence  of  evidence  that  the  company  had  provided 
the  means  for  booking  of  baggage.' 

What  constitutes  a  delivery  of  baggage  is  to  a  great  extent  a  question  of  fact, 
to  be  determined  by  the  jury.^  In  a  case  where  the  only  evidence  of  delivery 
was  that  the  witness,  in  whose  care  the  plaintiff  came  as  a  passenger,  caused  the 
plaintiff's  trunk  to  be  placed  on  board  the  steamer  in  New  Orleans  a  short  time 
before  her  departure,  and  the  jury  were  instructed  by  the  court  that  to  charge  the 
defendant  (the  master  of  the  steamer)  it  must  be  shown  to  their  satisfaction  that 
the  trunk  was  delivered  to  the  defendant,  or  to  the  purser  of  the  steamer,  or  to 

1  Davis  V.  Michigan  etc.  R.  Co.,  22  111.  278;  s  Green  v.  Milwaukee  etc.  R.  Co.,  38  Iowa, 
Chicago  etc.  R.  Co.  v.  Clayton,  78  111.  616;  100.  See  also  Minter  v.  Pacific  R.  Co.,  41  Mo. 
Check  V.  Little  Miami  R.  Co.,  2  Disney,  238;  503;  Najac  v.  Boston  etc.  R.  Co.,  7  Allen,  329; 
Davis  V.  Cayuga  etc.  R.  Co.,  10  How.  Pr.  330;  Camden  etc.  R.  Co.  i;.  Belknap,  21  Wend.  354. 
Atchison  etc.  R.  Co.  v.  Brewer,  20  Kan.  669.  «  Freeman  v.  Newton,  3  E.  D.  Smith,  246. 

2  Chicago  etc.  R.  Co.  v.  Clayton,  78  111.  616.  See  also  Hickox   v.  Naugatuck  R.  Co.,  31 

*  Chicago  etc.  R.  Co.  v.  Clayton,  supra.  Conn.  281. 

*  Chicago  etc.  R.  Co.  v.  Clayton,  supra.  '  Great  Western  R.  Co.  v.  Goodman,  12  C. 
See  also  Davis  v.  Michigan  etc.  R.  Co.,  22  B.  313;  s.  c.  16  Jur.  862;  21  L.  J.  (C.  P.)  197. 
Dl.  278;  Kansas  Pacific  R.  Co.  v.  Montelle,  «  Dibble  u.  Brown,  12  Ga.  217;  Flaherty*. 
10  Kan.  119.  Green  man,  7  Daly,  481. 


CUSTODY    OF    THE    BAGGAGE.  515 


Theft  while  in  Control  of  Passenger. 

some  other  person  authorized  to  receive  it  on  the  part  of  the  steamer,  and  the  jury 
found  for  the  plaintiff,  the  court  above  refused  to  reverse  the  judgment  on  the 
ground  that  the  evidence  was  insufficient  to  show  delivery  of  the  trunk  to  the 
employees  of  the  steamer.^  In  a  case  where  a  portmanteau  was  left  outside  of  the 
cabin  on  a  steamboat,  one  of  the  employees  of  the  boat  saying  that  it  would  be  safe 
there,  these  facts  were  held  to  be  sufficient  to  charge  the  owner  of  the  boat  with 
its  loss.2  But  where  a  passenger  by  railway  entered  a  car  just  before  the  train 
started,  left  his  valise  on  a  vacant  seat  and  went  out,  and  upon  his  return  found  the 
valise  was  gone,  and  it  did  not  appear  that  any  one  was  in  charge  of  the  train  at 
the  time,  the  court  held  that  there  was  no  sufficient  delivery  of  the  valise  to  the 
defendant.^  Nor,  in  another  case,  was  the  defendant  liable  for  the  loss  of  a 
trunk  said  to  contain  a  large  sum  of  money,  which  the  plaintiff  left  in  charge  of 
the  baggage-keeper  contrary  to  the  advice  and  instructions  of  the  captain  of  the 
steamer,  who  indicated  the  office  as  the  proper  place  of  deposit,  the  plaintiff 
stating  at  the  time,  in  answer  to  the  captain,  that  he  would  take  care  of  the  trunk 
himself.*  Mere  voluntary  assistance  by  the  agents  of  the  company  in  looking 
for  lost  baggage,  or  an  offer  by  way  of  gi-atuity  to  pay  on  account  of  it,  is  not 
such  evidence  that  the  baggage  was  ever  in  their  possession  as  to  render  a  rail- 
road company  liable  for  its  loss.* 

But  where  the  route  for  which  the  ticket  is  sold  and  the  check  given  extends 
over  several  connecting  lines  of  railway,  a  check  given  by  one  of  them  will  not  be 
evidence  against  any  of  the  roads  except  the  one  issuing  the  check,  although  the 
names  of  all  of  them  be  stamped  upon  it.^  But  the  relations,  duties,  and  liabili- 
ties of  connecting  lines  of  railway  are  more  fully  discussed  elsewhere  in  this 
work,  under  the  head  of  Connecting  Lines,'  to  which  the  reader  is  referred. 

§  5.  Baggage  under  the  Personal  Control  of  the  Passenger  —  Theft  of. — 
An  essential  element  of  the  extraordinary  liability  of  innkeepers  and  common 
carriers  is  the  custody  of  the  property  of  the  guest,  shipper,  or  traveller,  as  the 
case  may  be.  Questions  as  to  the  effect  of  the  owner's  assumption  of  the  cus- 
tody of  the  goods  while  in  the  hands  of  the  carrier  or  innkeeper,  upon  the  legal 
liability  of  the  latter,  arose  very  early  in  England.  The  cases  exhibit  a  conflict 
of  authority.  Thus,  we  find  it  decided  that  the  East  India  Company,  which  was 
accustomed,  in  unloading  goods  from  their  vessels,  to  send  an  officer  along  in  the 
lighter,  who,  as  soon  as  the  lading  was  taken,  put  the  company's  lock  on  the 
hatches  and  went  with  the  goods  to  see  them  safely  delivered  at  the  warehouse, 
could  not  under  such  circumstances  recover  of  the  lighterman  for  a  part  of  the 
goods  which  were  lost.^  And  an  innkeeper  was  held  not  to  be  liable  for  goods 
which  were  lost  out  of  a  private  room  of  the  inn,  chosen  by  his  guest  for  the 
exhibition  of  the  goods  to  his  customers,  after  he  had  informed  his  guest  that 
there  was  a  key  to  the  room  by  which  he  might  lock  the  door,  which  the  guest 
neglected  to  do.» 

1  Forbes  v.  Davis,  18  Texas,  268.  *  Michigan  etc.  R.  Co.  v.  Meyres,  21  111.  627. 

2  Bankier  v.  Wilson,  5  Lower  Canada  Rep.  "  Kcssler  v.  New  York  etc.  R.  Co.,  61  N.  Y. 
203.  538 ;  s.  c.  1  Abb.  N.  C.  549 ;  7  Lan.s.  62 ;  Fursten- 

3  Kerr  v.  Grand  Trunk  R.  Co.,  24  Upper  heim  v.  Memphis  etc.  R.  Co.,  »  Heisk.  238. 
Canada  C.  P.  209.  '  ^n^e.Chap.  XIII. 

■*  Senecal  v.  Richelieu  Co.,  15  Lower  Can-  »  Kast  India  Co.  v.  Pullen,  Slni.  690. 

ada  Jur.  1.  ■  Burgess  v.  Clenieuts,  4  Man.  &  Sel.  305. 


5*1  G  passenger's  baggage. 


Notes. 


But  in  the  case  of  Bobinson  v.  Dunmore  ^  the  court  held  that  if  A.  sends  goods 
by  B.,  who  says,  "  I  will  warrant  they  shall  go  safe,"  B.  is  liable  if  they  are  lost 
or  injured,  notwithstanding  A.  sends  one  of  his  own  servants  in  B.'s  cart  to  look 
after  them.  The  court  endeavored  to  distinguish  this  case  from  that  of  East 
India  Company  v.  Pullen,  cited  above,  by  saying  that  that  company  never  intrust 
their  goods  to  a  lighterman,  but  give  the  whole  charge  of  their  property  to  one 
of  their  officers,  who  is  called  a  guardian.  But  in  view  of  the  facts  of  the  two 
cases,  this  distinction  appears  more  ingenious  than  real.  Calye''s  Case  ^  is  author- 
ity for  a  corresponding  doctrine  with  reference  to  innkeepers. 

A  recent  and  well-considered  case,^  in  which  all  the  authorities  are  reviewed  at 
length,  applies,  in  a  slightly  modified  form,  the  doctrine  of  East  India  Company 
V.  Pullen  to  the  case  of  a  passenger  who  takes  his  portmanteau  with  him  into  a 
railway  carriage.  The  court  say:  "It  is  obvious,  at  least  with  respect  to  arti- 
cles which  are  not  put  in  the  usual  luggage-van  and  of  which  the  entire  control 
is  not  given  to  the  carrier,  but  which  are  placed  in  the  carriage  in  which  the  pas- 
senger travels,  so  that  he  and  not  the  company's  servants  has  de  facto  the  entire 
control  whilst  the  carriage  is  moving,  the  amount  of  care  and  diligence  reason- 
ably necessary  for  their  safe  conveyance  is,  in  fact,  considerably  modified  by  the 
cii'cumstance  of  their  being,  during  that  part  of  the  journey  in  which  the  passen- 
ger might  under  ordinary  circumstances  be  expected  to  be  in  the  carriage,  in- 
tended by  both  parties  to  be  under  his  personal  inspection  and  care.  To  such  a 
state  of  things  the  rule  which  binds  common  carriers  absolutely  to  insure  the 
safe  delivery  of  the  goods,  except  against  the  act  of  God  or  the  queen's  ene- 
mies, whatever  may  be  the  negligence  of  the  passenger  himself,  has  never,  that 
we  are  aware  of,  been  applied.*  *  *  *  There  is  great  force  in  the  argument 
that  where  articles  are  placed,  with  the  assent  of  the  passenger,  in  the  same  car- 
riage with  him,  and  so  in  fact  remain  in  his  own  control  and  possession,  the 
wide  liability  of  the  common  carrier  which  is  founded  on  the  bailment  of  the 
goods  to  him,  and  his  being  intrusted  with  the  entire  possession  of  them,  should 
not  attach,  because  the  reasons  which  are  the  foundation  of  the  liability  do  not 
exist.  In  such  cases,  the  obligation  to  take  reasonable  care  seems  naturally  to 
arise ;  so  that  when  loss  occurred,  it  would  fall  on  the  company  only  in  the  case 
of  negligence  in  some  part  of  the  duty  which  pertained  to  them."  * 

Some  limitations  of  this  rule  are  very  clearly  expressed  by  the  English  Court 
of  Queen's  Bench  in  the  case  of  Le  Conteur  \\  London,  etc.  Railway  Company, 6 
There,  the  passenger  carried  with  him  a  chronometer,  which  by  his  direction  the 
railway  porter  placed  upon  his  seat  in  the  carriage.  He  then  went  to  look  after 
the  rest  of  his  luggage,  and  returned  after  an  absence  of  ten  or  fifteen  minutes, 
when  the  chronometer  was  missing.  Upon  these  facts,  Cockburn,  C.  J.,  said : 
"  When  the  case  was  first  opened,  I  had  imagined  that  the  facts  were  such  as  to 
lead  to  the  necessary  inference  that  the  plaintiff  had  taken  possession  of  the 
chronometer,  withdrawing  it  from  the  custody  of  the  company  and  keeping  it 

1  2  Bos.  &  Pul.  419.  L.  J.  222 ;  18  Alb.  L.  J.  32 ;  3  C.  B.  Div.  221 ; 

2  8  Co.  63.  38  L.  T.  (N.  S.)  160;   Glover  v.  London  etc. 

3  Talley  v.  Great  Western  R.  Co.,  L.  R.  b       R.  Co.,  L.  R.  3  Q.  B.  25. 

C.  P.  44.  4  Id.  51.  6  L.  R.  1  Q.  B.  54;  s.  c.  35  L.  J.  (Q.  B.)  40; 

£■  Id.  52.  See  also  Bergheim  t,'.  Great  East-  12  Jur.  (n.  s.)  266;  14  Week.  Rep.  80;  13  L.  T. 
em  R.  Co.,  17  Am.  L.  Reg.  779;  s.  c.  6  Cent.        (N.  S.)  325. 


CUSTODY    OF    THE    BAGGAGE.  517 


Theft  while  in  Control  of  Passenger. 

in  his  own  personal  custody  and  charge ;  but  I  think  my  first  impression  was 
incorrect.  I  think  it  appears  that  what  took  place  was  this :  that  by  the  desire 
of  the  plaintiff,  the  porter  of  the  company  placed  this  article  in  a  carriage  In 
which  a  particular  seat  was  to  be  appropriated  to  the  use  of  the  plaintiff.  I  am 
very  far  from  saying  that  there  may  not  in  these  cases  sometimes  be  a  state 
of  circumstances  in  which  a  passenger  who  has  luggage  which,  by  the  terms  of 
the  contract,  the  company  are  bound  to  convey  to  the  place  of  destination  along 
with  him,  may  not  release  the  company  from  their  obligation  as  carriers  for 
the  safe  custody  of  the  article,  by  taking  it  into  his  own  personal  custody  and 
charge.  But  I  think  the  circumstances  must  be  strong  to  relieve  the  company 
from  their  liability.  It  is  not  because  the  article  that  is  part  of  the  passenger's 
luggage  to  be  conveyed  with  him  is,  by  the  joint  consent  of  the  passenger  and 
the  company,  placed  in  a  carriage  with  him  that  the  company  are  necessarily 
released  from  their  obligation  to  carry  safely.  Nothing  could  be  more  incon- 
venient than  that  the  practice  of  placing  small  articles  which  it  is  convenient  to 
the  passenger  to  have  with  him  in  the  carriage  in  which  he  is  about  to  ride 
should  be  discontinued ;  and  if  the  company  were,  from  the  mere  fact  of  articles 
of  this  description  being  placed  in  a  carriage  with  a  passenger,  to  be  at  once 
relieved  from  the  obligation  of  safely  carrying  such  articles,  it  would  follow 
that  no  one  who  has  occasion  to  leave  the  carriage  temporarily  would  be  able 
to  have  them  with  him  with  any  degree  of  safety.  I  cannot  think,  therefore, 
we  ought  to  come  to  any  conclusion  which  would  relieve  the  company,  under 
such  circumstances,  from  the  obligation  as  carriers  to  cany  the  luggage  safely, 
which  for  general  convenience  ought  certainly  to  attach  to  them.  I  cannot  help 
thinking,  therefore,  we  ought  to  require  very  special  circumstances  indeed,  and 
circumstances  leading  irresistibly  to  the  conclusion  that  the  passenger  takes 
such  personal  control  and  charge  of  his  luggage  as  to  altogether  give  up  all  hold 
upon  the  company,  before  we  can  say  that  the  company,  as  common  carriers, 
would  not  be  liable  in  the  event  of  the  loss." 

This  language  is  an  excellent  expression  of  the  doctrine  of  the  American 
cases,  though  it  must  be  confessed  that  it  is  very  difficult  to  draw  the  line  of 
demarcation  between  those  circumstances  which  will  be  considered  an  assump- 
tion of  the  charge  of  his  baggage,  animo  custodiendi,  by  a  passenger,  and  those 
which  indicate  merely  a  desire  to  avail  himself  of  personal  conveniences  which 
he  carries  in  it,  without  assuming  custody  of  it  for  safe-keeping.  In  a  Wis- 
consin case,  a  traveller  deposited  his  valise  in  a  state-room  of  a  steamer  while  he 
went  to  get  his  trunk  checked.  He  asked  for  a  key  to  the  state-room,  but  was 
informed  that  they  gave  no  keys,  and  put  his  valise  in  the  unlocked  state-room, 
calling  the  attention  of  two  or  three  cabin  or  saloon  boys  to  it,  and  ^sked  their 
opinion  as  to  whether  it  would  be  safe.  Receiving  an  affirmative  answer,  he 
went  away.  The  valise,  during  his  absence  of  about  three-quarters  of  an  liour, 
was  lost  or  stolen.  The  court  held  that  there  was  not  a  sufficient  delivery  into 
the  custody  of  the  carrier  to  charge  him  for  the  loss.'  There  is  a  similar  ruling 
in  a  recent  Pennsylvania  case.^ 

Where  the  jewelry  usually  worn  by  two  ladies  as  a  part  of  their  apparel  was 

'  Gleason  v.  Gooflrich  Transp.  Co.,  32  Wis.  "  American  Steamship  Co.  v.  Bryan, 83  Pa. 

85.    Compare  Kinsley  v.  Lake  Shore  etc.  R.       St.  446. 
Co.,  19  Alb.  L.J.  113. 


oly  passenger's  baggage. 


Notes. 


left  by  them  in  a  carpet-bag  in  their  state-room  on  a  steamboat,  and  was  stolen 
while  thej'  were  at  supper,  the  court  held  that  the  boat  was  not  liable  for  the 
loss.i  "Where  the  plaintiff,  a  German  emigrant  and  steerage-passenger  from 
Liverpool  to  New  York,  took  his  trunk  with  him  into  the  steerage  and  placed  it 
under  his  bed,  and  fastened  it  with  ropes  to  his  berth,  the  court  considered  that 
his  conduct  in  relation  to  it  plainly  indicated  that  he  relied  upon  his  own  care  and 
vigilance  to  protect  himself  against  loss,  and  refused  to  hold  the  carrier  liable 
when  it  appeared  that  during  a  violent  storm  the  ropes  were  cut  and  the  trunk 
stolen.^  But  several  cases  have  held  that  taking  his  baggage  with  him  to  his 
state-room  on  a  steamboat  is  not  such  an  assumption  of  custody  on  the  part  of 
the  passenger  as  will  relieve  the  carrier  from  liability  for  its  loss.' 

The  Supreme  Court  of  the  United  States  held,  in  a  case  where  the  baggage, 
stores,  etc.,  of  a  body  of  troops  was  transported,  and  the  soldiers  went  along 
with  it  for  the  purpose  of  guarding  it  against  the  attacks  of  guerillas,  that  such 
cii'cumstances  would  not  relieve  the  railway  company  from  a  loss  consequent 
upon  fire.* 

Where  the  assumption  of  custody  on  the  part  of  the  passenger  is  only  partial, 
and  the  baggage  comes  again  into  the  hands  of  the  carrier's  servants  before  the 
final  delivery  to  the  passenger,  and  is  then  lost,  the  carrier  is  responsible  for 
the  loss.  Thus,  in  a  case  where  a  lady  was  a  passenger  by  railway,  and  her 
dressing-case  was  put  under  her  seat  in  the  railway  carriage,  and  upon  arrival  at 
her  destination  the  porters  of  the  company  took  upon  themselves  the  duty  of 
carrying  her  luggage  to  the  hackney  coach  which  was  to  convey  her  to  her 
residence,  and  the  dressing-case  was  lost,  the  court  held  that  the  duty  of  the 
carrier  continued  until  the  luggage  was  placed  in  the  hackney  carriage,  and  that 
the  plaintiff  was  entitled  to  recover  for  the  loss." 

The  fact  that  the  passenger  retains  custody  of  his  baggage  relieves  the  carrier 
of  his  extraordinary  liability  as  insurer  only.  For  all  losses  consequent  upon 
the  negligence  of  the  carrier  or  his  servants  he  still  remains  liable.*  Thus,  a 
passenger  upon  the  defendant's  steamship  had  his  baggage  in  his  state-room, 
which  was  kept  open,  according  to  the  custom  of  the  vessel,  for  purposes  of 
ventilation;  the  state-room  opened  into  a  passage-way,  which  in  turn  opened 
into  the  cabin.  A  light  was  always  kept  burning  and  a  watchman  on  duty  at 
night  in  the  cabin.  The  duty  of  keeping  watch  was  performed  by  the  stewards 
and  waiters  of  the  vessel,  and  was  in  addition  to  their  daily  duties.  The  watch- 
man on  duty  was  required  by  the  rules  to  report  every  hour  to  the  officer  on  the 

1  The  R.  E.  Lee,  2  Abb.  O.  C.  49.  See  also  237;  Gore  v.  Norwich  etc.  Transp.  Co.,  2 
DelValle  v.  Str.  Richmond,  27  La.  An.  itO;  Daly,  254;  Walsh  r.  Steamboat  H.  M.  Wright, 
Williams  r.  Keokuk  etc.  Packet  Co.,  3  Cent.  1  Newb.  Adm.  494;  Mudgett  v.  Bay  State 
L.  J.  400;  Steamboat  Crystal  Palace  v.  Van-  Steamboat  Co.,  1  Daly,  151. 

derpool,  16B.  Mou.  302;  Tower  v.  Utica  etc.  •*  Hannibal  etc.  R.  Co.  v.  Swift,  12  Wall. 

R.  Co.,  7  Hill,  47;  Weeks  v.  New  York  etc.  R.  262. 

Co.,  72  N.  Y.  50;  s.  c.  6  Reporter,  54;  17  Am.  »  Richards  v.  London  etc.  R.  Co.,  7  C.  B. 

L.  Reg.  506;  Abbott  v.  BradBtreet,55  Me.  530;  839;  s.  c.  6  Eng.  Rail.  Cas.  49;  13  Jur.  9S6;  IS 

Clark  V.  Burns,  118  Mass.  275.  L.  J.  (C.  P.)  251.    See  also  Butcher  v.  London 

2  Cohen  v.  Frost,  2  Duer,  335.    See  also  etc.  R.  Co.,  16  C.  B.  13. 

Welch  V.  Pullman  Palace-Car  Co.,  16  Abb.  «  American  Steamship  Co.  v.  Bryan,  83  Pa. 

Pr.  (N.  s.)  352.  St.  446;  Kinsley  v.  Lake  Shore  etc.  R.  Co.,  19 

3  Macklin  V.  New  Jersey  Steamboat  Co.,  7  Alb.  L.  J.  113;  Williams  v.  Keokuk  etc. 
Abb.  Pr.  (N.  S.)  229;  s.  c.  9  Am.  L.  Reg.  (N.  s.)  Packet  Co.,  3  Cent.  L.  J.  400. 


LIABILITY    AS    BAILEE    OE    WAREHOUSEMAN.  519 


Respondeat  Superior. 

bridge.  The  passenger's  two  valises  were  stolen  from  his  room  while  he  was 
asleep.  It  appeared  that  on  the  night  in  question  the  watchman,  while  reporting 
at  the  bridge,  had  stopped  to  get  a  cup  of  coffee ;  and  that  state-rooms  on  both 
sides  of  the  cabin  were  robbed  on  the  same  night.  There  was  slight  evidence 
tending  to  show  that  the  theft  was  committed  by  a  passenger.  In  an  actiou 
against  the  carrier  to  recover  the  value  of  his  lost  baggage,  the  jury  found  a  ver- 
dict for  the  plaintiff,  subject  to  a  reserved  point  as  to  whether  there  was  any 
evidence  of  negligence.  The  court  held  that  these  facts  were  evidence  of  negli- 
gence to  go  to  the  jury.i 

§  6.  Articles  received  in  other  Capacity  than  as  a  Carrier.  —  In  order  to 
hold  the  carrier  to  his  liability  as  such  for  the  loss  of  baggage,  it  must  appear 
not  only  that  the  baggage  came  into  his  custody,  but  that  it  was  so  received  in 
discharge  of  his  public  functions  as  a  common  carrier.  In  England  there  is 
sometimes  attached  to  a  railway  station  a  "  cloak-room,"  as  it  is  called,  for  the 
convenience  of  the  public  in  depositing  for  temporary  safe-keeping  such  small 
articles  as  travellers  carry  about  with  them.  It  has  been  held  that  the  railway 
company  is  liable  for  the  loss  of  such  articles  only  as  a  bailee  for  hire,  and  not  as 
a  carrier.'^ 

In  this  country,  where,  upon  the  conclusion  of  a  journey,  the  passenger's  bag- 
gage is  at  his  request  kept  overnight  in  a  warehouse  of  the  carrier,  it  has  been  held 
that  the  responsibility  of  the  carrier  for  such  baggage  is  that  of  a  warehouseman, 
and  not  that  of  a  carrier.*  In  another  case  where  the  plaintiff  presented  his  bag- 
gage, the  baggage -master,  in  accordance  with  a  rule  of  the  defendant,  declined 
to  check  his  baggage  until  the  passenger  procured  passage-tickets.  During  the 
plaintiff 's  absence  for  this  purpose,  the  baggage-master  caused  the  baggage  to  be 
placed  in  the  car,  and  upon  his  return  refused  to  give  the  plaintiff  a  check  until 
he  paid  for  the  extra  weight.  The  plaintiff  refused  to  pay,  and  demanded  his 
baggage,  which  the  baggage-master  declined  to  deliver,  because,  being  covered 
with  other  baggage,  it  was  impossible  to  reach  it  without  delaying  the  train.  The 
plaintiff  declined  to  take  passage  without  his  checks,  and  the  baggage  was  car- 
ried through  to  Chicago,  where,  the  night  after  its  arrival,  it  was  destroyed  by 
fire.  The  action  was  for  its  conversion,  and  the  court  held  that  the  relation  of 
the  parties  was  not  that  of  common  carrier  and  passenger;  that  the  defendant 
could  not  avail  itself  of  any  of  the  rules  which  have  been  established  as  to  the 
liabilities  of  carriers ;  and  that  the  defendant  was  responsible  for  the  act  of  its 
servant  in  withholding  the  plaintiff's  property.* 

§7.  A  Question  of  Respondeat  Superior.  —  Questions  of  agency  sometimes 
arise  in  this  connection.    The  general  rule  is,  that  whomsoever  the  carrier  per- 

1  American  Steamship  Co.  V.Bryan,  83  Pa.  Div.  41C.  A  packet  or  sealed  letter,  with 
St.  446.  bank-notes  enclosed,  delivered  by  a  passeu- 

2  Van  Toll  V.  South-EasternR.  Co.,12C.  B.  ger  to  the  clerk  of  a  steamboat  for  safe 
(N.  8.)  75;  8.  c.  31  L.  J.  (C.  P.)  241;  8  Jur.  (N.  keeping,  is  siinidy  a  contract  of  deposit 
8.)  1213;  10  Week.  Ptep.578;  6  L.  T.  (N.  S.)  244;  between  them,  in  which  the  depositary  is 
Stallard  v.  Great  Western  R.  Co.,  2  Best  &  S.  only  resiionsible  for  ordinary  care.  Wilcox 
419;  8.  c.  8  Jur.    (N.  S.)  1070;  31  L.J.  (Q.  15.)  r.The  Philadeli)hi!i,  !l  I.a.  80. 

137;  10  Week.  Rep.  488;  0  L.  T.  (N.  S.)  217;  "  Pike  v.  Chicago  etc.  R.  Co.,  40  Wis.  683. 

Harris  v.  Great  Western  R.  Co.,  1  Q.  B.  Div.  *  McCormick  v.  Penn.  etc.  R.  Co.,  49  N.  Y. 

^l.'i;  Parker  r.  .South-Eastern  R.  Co.,  2  C.  P.        303. 


520  passengek's  baggage. 


Notes. 


mits  to  assume  and  perform  liis  duties  with  reference  to  passengers'  baggage, 
is  to  that  extent  and  for  that  purpose  to  be  regarded  as  his  agent,  and  the  carrier 
is  accordingly  held  liable  for  his  default  and  neglect.  Thus,  a  porter  on  a  steam- 
boat, whose  habit  it  was  to  take  charge  of  passengers'  baggage,  though  not  one 
of  the  boat's  crew  nor  paid  by  the  boat,  but  receiving  his  compensation  from  pas- 
sengers, was  nevertheless  held  to  be  the  agent  of  the  cari'ier  for  the  care  of  such 
baggage,  and  the  latter  was  accordingly  liable  for  the  loss  of  baggage  while  in  his 
custody  and  charge. ^  And  where  a  passenger  upon  a  railway  delivered  his  bag- 
gage into  the  charge  of  the  conductor  or  porter  of  a  sleeping-car,  and  it  was  lost, 
the  carrier  was  not  permitted  to  defend  on  the  ground  that  the  car  was  owned 
and  the  servants  employed  by  a  third  party  and  not  by  the  defendant,  because  it 
did  not  appear  that  the  passenger  was  aware  of  these  facts.'' 

The  commissioners  of  emigration  of  the  State  of  New  York,  not  being  engaged 
or  interested  in  the  transportation  of  passengers  or  baggage,  or  in  the  care  of 
baggage  after  it  is  landed,  and  having  no  agents  who  are  so  engaged,  are  not 
responsible  for  the  loss  of  baggage  delivered  by  an  emigrant  on  board  a  ship  in 
the  harbor  of  New  York  to  the  crew  of  a  tug-boat,  to  be  transpoi'ted  to  Castle 
Garden.  The  licensing  of  the  owners  or  captains  of  steamboats,  etc.,  to  receive 
and  land  passengers  and  their  baggage,  and  of  persons  to  solicit  emigrant  pas- 
sengers and  baggage  for  boarding-houses  and  transportation  lines,  by  the  com- 
missioners of  emigration,  does  not  make  the  licensed  persons  the  agents  of  the 
commissioners,  or  render  the  latter  responsible  for  their  good  conduct.^ 

A  similar  conclusion  was  reached  in  an  English  case.  A  cab,  running  in  the 
usual  way  in  the  streets  of  London,  was  hired  by  a  person  to  carry  his  baggage. 
The  baggage  was  lost  through  the  fault  of  the  driver.  On  the  cab  was  the  name 
of  the  defendant  as  proprietor  of  it,  which  he  was  in  fact.  But  a  third  person^ 
a  licensed  driver,  was  driving  at  the  time.  On  the  trial,  it  appeared  that  the 
driver  each  day  paid  a  sum  of  money  to  the  proprietor  for  the  use  of  the  cab 
and  two  horses  for  the  day,  and  then  made  what  he  could  by  the  use  of  the  cab 
and  horses.  The  court  held  that  the  driver  must  be  taken  to  be  the  agent  of  the 
proprietor,  with  authority  to  make  contracts  for  the  employment  of  the  cab  on 
his  account,  and  consequently  that  the  action  was  rightly  brought  against  the 
proprietor.* 

§  8.  The  Contract  in  Respect  ol  the  Carriage  of  Baggage  —  A  Carrier  of 
Passengers  is  responsible  as  a  Common  Carrier  for  the  Safe  Carriage  of  Bag- 
gage. —  The  contract  to  carry  a  passenger  includes  the  obligation  to  carry  such 
articles  as  are  properly  comprehended  under  the  term  "  baggage,"  or,  as  it  is 
called  in  the  English  books,  "  luggage,"  without  extra  charge.*    But  there  are 

»  Perkins  v.  Wright,  37  Ind.  27.    See  also  *  Powles  v.  Hider,  6  El.  &  Bl.  207;  «.  c.  2 

Torpey  v.  Williams,  3  Daly,  162;   Jordan  v.  Jur.  (N.  s.)  472;  25  L.  J.  (Q.  B.)  331. 

Fall  River  R.  Co.,  5  Cush.  69;  Ouimit  v.  Hen-  s  Orange  County  Bank  v.  Brown,  9  Wend. 

~haw,  35  Vt.  604;  Blairi;.  ErieR.  Co.,66N.  T.  85;    Peixotti  v.  McLauglilin,  1   Sti-obh.  468; 

313.  Woods  V.  Devin,  13  HI.  746;  Merrill  v.  Grin- 

2  Kinsley  V.  Lake  Shore  etc  R.  Co.,  19  Alb.  nell,  30  N.  Y.  594;  Chicago  etc.  R.  Co.  «v 
L.  J.  113.  See,  in  this  connection,  Thorpe  v.  Fahey,  52  El.  81;  Cincinnati  etc.  R.  Co.  v. 
New  York  etc.  R.  Co.,  13  Hun,  70;  s.  c.  19  Marcus,  38  111.  219;  Hannibal  etc.  R.  Co.  v. 
Alb.  L.  J.  471.  Swift,  12  Wall.  262 ;  Fairfax  i:  New  York  etc. 

3  Murphyt).  Commissioners  of  Emigration,  R.  Co.,  5  Jones  &  Sp.  516;  The  Elvira  Har- 
28  N.  Y.  134;  Semler  v.  Commissioners  of  beck,  2  Blatchf.  336;  Glasco  v.  New  York  etc. 
Emigration,  1  Hilt.  244.  R.  Co.,  36  Barb.  557;  Perkins  r.  Wright,  "7 


COMMON-LAW    LIABILITY    FOR. 


521 


Liable  as  an  Insurer. 


two  distinct  measures  of.  responsibility  which  are  applicable  to  the  functions  of 
the  carrier  as  to  the  person  of  the  passenger  and  his  baggage.  A  passenger- 
carrier  is  not  liable  as  an  insurer  for  any  injury  which  the  person  of  the  traveller 
may  sustain  while  in  his  hands ;  but  a  carrier  of  goods,  with  the  familiar  excep- 
tions, incurs  an  absolute  responsibility  for  the  safety  of  the  goods  which  are 
committed  to  his  care,  or  is  responsible  in  the  same  degree  as  an  innkeeper  is 
for  the  safe-keeping  of  the  property  of  his  guest.  The  reason  is  plain.  The 
carrier  of  goods  and  the  innkeeper  have  opportunities  and  temptations  for  theft, 
robbery,  or  combinations  with  thieves  which  are  practically  unlimited,  and  there- 
fore the  policy  of  the  law  requires  that  they  should  be  held  answerable  for  all 
loss  or  damage  to  the  property  committed  to  their  charge,  without  reference  to 
the  question  of  the  degree  of  care  actually  exercised  by  them,  unless  such  loss 
proceed  from  "  the  act  of  God  or  the  king's  enemies."  i 

The  reasons  of  this  rule  are  inapplicable  to  carriers  of  passengers,  and  there- 
fore the  carrier  is  not  responsible  for  an  injury  to  the  person  of  the  passenger 
unless  it  be  shown  to  have  resulted  in  some  way  from  the  carrier's  negligence.^ 
But  with  reference  to  the  baggage  of  the  passenger  the  position  in  which  the 
carrier  is  placed  is  practically  the  same  as  that  of  the  common  carrier  in  regard 
to  goods  intrusted  to  his  charge ;  and  for  this  reason  the  former  is  liable  to  the 
same  extent  for  the  safe  carriage  and  delivery  of  the  baggage  of  passengers 
received  by  him,  notwithstanding  the  fact  that  he  receives  therefor  no  compensa- 
tion beyond  the  fare  of  the  passenger.^    But  to  entitle  the  plaintiff  to  have  his 


Ind.  27;  Hutchings  v.  Western  etc.  R.  Co.,  25 
Ga.  61;  Hirschsohn  v.  Hamburg  etc.  Packet 
Co.,  2  Jones  &  Sp.  521;  Mississippi  etc.  R. 
Co.  V.  Kennedy,  41  Miss.  671 ;  Wilson  v.  Grand 
Trunk  R.  Co.,  56  Me.  60;  Smith  v.  Boston  etc. 
R.  Co.,  44  N.  H.  325 ;  PoweU  v.  Myers,  26  Wend. 
591;  Camden  etc.  R.  Co.  v.  Burke,  13  Wend. 
611;  Pardee  v.  Drew,  25  Wend.  4.59. 

1  Coggs  V.  Bernard,  1  Smith's  Ld.  Cas.  283; 
».  c.  2  Ld.  Raym.  909. 

2  Camden  etc.  R.  Co.  v.  Burke,  13  Wend. 
611. 

*  Orange  County  Bank  v.  Brown,  9  Wend. 
85;  Peixotti  v.  McLaughlin,  1  Strobh.  468; 
Woods  V.  Devin,  13  111.  746;  Hawkins  v. 
Hoffman,  6  Hill,  586;  Merrill  v.  Grinnell,  30 
N.  Y.  594;  Bomar  v.  Maxwell,  9  Humph. 
621 ;  Chamberlain  v.  Western  Transp.  Co.,  45 
Barb.  218;  Camden  etc.  R.  Co.  v.  Burke,  13 
Wend.  611 ;  Bayliss  v.  Lintott,  L.  R.  8  C.  P. 
345;  s.  c.  42  L.  J.  (C.  P.)  119;  28  L.  T.  (N.  8.) 
666;  Blossman  v.  Hooper,  16  La.  An.  160 
Chicago  etc.  R.  Co.  v.  Fahey,  52  111.  81 
Dill  V.  South  Carolina  R.  Co.,  7  Rich.  158 
Dibble  V.  Brown,  12  Ga.  217;  Hannibal  etc. 
R.  Co.  V.  Swift,  12  Wall.  262;  Fairfax  v.  New 
York  etc.  R.  Co.,  5  Jones  &  Sp.  516;  The  El- 
vira Harbeck,  2  Blatchf.  336;  Glasco  v.  New 
York  etc.  R.  Co.,  36  Barb.  557;  Perkins  v. 
Wright,  37  Ind.  27;  Moore  v.  Str.  Even- 
ing Star,  20  La.  An.  402;  Wilson  v.  Chesa- 


peake, 21  Gratt.  654.  In  two  of  the  earliest 
cases  on  this  subject  a  contrary  rule  was  de- 
clared. In  the  case  of  Middleton  v.  Fowler, 
1  Salk.  282,  determined  in  1699,  Lord  Holt 
said  that  an  action  would  not  lie  against  the 
owner  of  a  stage-coach  for  the  loss  of  the 
trunk  of  a  passenger,  because  nothing  was 
paid  for  the  carriage  of  the  trunk  as  distinct 
from  the  passage-money  of  the  traveller.  A 
similar  view  prevailed  also  in  Upshare  v. 
Aidee,  1  Comyns  25,  determined  in  1697.  A 
decision  of  the  New  York  Court  of  Common 
Pleas  goes  to  the  other  extreme.  The  action 
was  against  a  street- car  company  for  the 
loss  of  a  satchel  which  was  inadvertently 
left  in  one  of  the  defendants'  cars  and  in 
pursuance  of  a  regulation  of  the  company 
was  carried  to  the  depot  of  the  company  and 
placed  in  the  hands  of  tlie  receiver  of  the 
road,  whose  duty  it  was  to  keep  it  for  the 
owner.  He  delivered  it  to  a  person  who 
was  not  the  owner  of  it,  who  demanded  it, 
saying  it  was  the  |)roperty  of  her  mistress. 
The  court,  while  admitting  that  the  contract 
for  carriage  in  this  instance  did  not  involve 
the  obligation  to  carry  such  articles,  nor  the 
extraordinary  liability  for  their  safe-keeping 
which  the  law  imijoses  upon  passenger- 
carriers  with  respect  to  baggage,  held  that 
the  defendants  were  nevertheless  liable,  be- 
cause they  had  by  a  general  regulation  made 


o22  passenger's  baggage. 


Notes. 


personal  baggage  thus  carried,  it  is  necessary  that  he  should  travel  upon  the  same 
train  with  his  baggage.  If  he  intrusts  it  to  another,  as  where  a  gentleman 
directed  his  servant  to  take  his  portmanteau  by  one  train  and  he  himself  followed 
upon  another,  this  portmanteau  was  considered  as  being  the  baggage  of  neither, 
and  therefore  neither  could  recover  for  its  loss.i  And  whei'e  a  person  took  pas- 
sage in  a  vessel  and  his  baggage  did  not  reach  him  in  season  to  go  with  him,  but 
was  sent  after  him  in  another  vessel,  and  a  bill  of  lading  given  for  it  by  the 
mate,  the  court  held  the  case  to  be  precisely  similar  to  that  of  a  shipment  of 
goods ;  that  the  owner  of  the  second  vessel  would  have  a  lien  for  his  freight,  and 
in  case  of  the  loss  of  the  baggage  would  be  liable,  not  merely  as  a  gratuitous 
bailee,  but  as  a  common  carrier.^  This  rule,  however,  has  not  been  universally 
applied.  Where  the  passenger  pays  his  fare,  and  if  for  any  reason  the  baggage 
does  not  arrive  in  time  to  go  with  him  on  the  same  train,  and  the  carrier  under- 
takes to  forward  it  on  the  next,  it  has  been  held  that  he  is  liable  for  its  loss,  as  a 
carrier.^ 

§  9.  Responsibility  for  Extra  Baggage. — For  the  carriage  of  articles  which 
accompany  the  passenger's  baggage,  but  are  not  such  as  are  properly  included 
in  the  term,  or  such  as  are  in  excess  of  the  amount  established  by  law  or  charter 
regulations  as  the  limits  of  a  passenger's  baggage,  the  carrier  is  entitled  to 
demand  and  receive  a  special  compensation  in  addition  to  the  fare  paid  by  the 
passenger  for  the  carriage  of  his  person.  Where  such  additional  compensation  is 
paid  for  the  carriage  of  the  extra  baggage,  the  carrier  is  responsible  for  such  bag- 
gage in  the  same  manner  and  to  the  same  extent  as  the  carrier  of  goods.*  But 
where  articles  which  are  not  properly  baggage  are  packed  with  it,  whether  through 
the  ignorance  of  passengers  or  with  a  purpose  to  evade  the  payment  of  additional 
charges,  and  the  baggage  is  received  by  the  carrier  without  a  knowledge  of  the 
contents,  there  is  no  liability  on  his  part  for  such  articles  in  case  of  loss  of 
the  baggage.  The  agreement  on  the  part  of  the  carrier  is  to  carry  the  pas- 
senger and  his  baggage ;  as  to  articles  which  are  not  baggage  properly,  there 
is  no  contract  whatever  between  them.  In  cases  where  such  articles  are  car- 
ried in  the  baggage  of  the  passenger  for  the  purpose  of  avoiding  the  payment 
of  extra  charges,  such  circumstances  constitute  an  actual  fraud  upon  the  car- 
rier. It  is  therefore  plain  that  the  carrier  is  not  liable  for  the  value  of  such 
articles  when  lost  with  the  baggage  of  a  passenger.* 

it  a  part  of  the  duty  ol  their  agents  to  take  Iowa,  166;  Flaherty  v.  Greenman,  7  Daly, 

charge    of   property    inadvertently    left   in  481. 

their  cars,  and  provided  at  their  depot  a  *  Sloman  v.  Great  Western  R.  Co.,  67  X. 

place  for  its  safe-keeping  where  the  owner  Y.  208;  s.  c.  6  Hun,  546;  3  Abb.  N.  U.  57-2; 

might  apply  for  it,  and  thus  assumed  the  Helhnan  v.  Holladuy,  1  Woolw.  365;  Glaso 

responsibility  to  deliver  it  to  such  person.  v.  Xew  York  etc.  R.  Co.,  36  Barb.  557;  Dibble 

Morris  v.  Third  Avenue  R.  Co.,  1  Daly,  203.  v.  Brown,  12  Ga.  218;  Camden  etc.  R.  Co.  r. 

'  Becher  v.  Great  Eastern  R.  Co.,  L.  R.  5  Baldauf,  16  Pa.  St.  67;  Stoneman  v.  Erie  li. 

Q.  B.  241;  s.  c.  22  L.  T.  (N.  S.)  299;  18  Week.  Co.,  52  N.  Y.  429. 

Rep.  627;  39  L.  J.  (Q.  B.)  122.  s  Belfast  etc.  R.  Co.  v.  Keys,  9  H.  L.  Cas. 

=  The  Elvira  Harbeck,  2  Blatchf.  336.    See  550;    Hellman    r.  Holladay,   1    Woolw.  367; 

also   GrafiFam  v.  Boston  etc.  R.  Co.,  67  Me.  Great  Northern  R.  Co.  v.  Shepherd,  7  Eng. 

234;  Wilson  v.  Grand  Trunk  R.  Co.,  56  Me.  Rail.  Cas.  310;  s.  c.  8  Exch.  30;  21  L.J.  (Exch.) 

60;  s.  c.  57  Me  138.  286 ;  Doyle  v.  Kiser,  6  Ind.  242 ;  Nevins  v.  Bay 

'<>  Warner    v.  Burlington    etc.  R.  Co.,  22  State  Steamboat  Co.,  4  Bosw.  225;  CahUl  r. 


EXTRA  BAGGAGE. 


623 


Mistakes  as  to  Contents  of  Parcel. 


The  correctness  of  this  conclusion  is  not  affected  by  the  dictum  in  a  Pennsyl- 
vania case.  It  was  there  remarked  that  "  neither  concealment  nor  fraud  can  be 
imputed  to  the  plaintiff.  He  was  not  bound  to  disclose  the  nature  or  value 
of  the  goods,  unless  inquired  of  by  the  carrier,  in  which  case  he  must  answer 
truly."  '  As  to  the  authorities  cited  in  support  of  this  position,  one  of  the 
cases  ^  is  not  in  point.  It  was  an  action  for  the  loss  of  a  trunk  which  contained 
articles  of  baggage  proper  only,  and  turned  upon  the  question  of  whether  notice 
of  a  regulation  of  the  carrier  as  to  value  was  brought  home  to  the  passenger. 
The  other  two  were  cases  of  the  liability  of  common  carriers  of  goods,'  and 
obviously  inapplicable  to  the  case  of  the  carriage  of  such  articles  without  extra 
charge.  It  is  evident  that  this  rule  applies  only  to  those  cases  where  the  carrier 
is  not  aware  of  the  presence  of  such  additional  articles  in  the  baggage.  If  he  is 
notified  of  the  fact,  or  if  they  are  carried  openly,  or  so  packed  that  their  nature 
is  obvious,  and  the  carrier  accepts  them  for  carriage  without  objection,  the  law 
presumes  an  undertaking  on  his  part  to  carry  them  as  baggage,  and  he  will  be 
liable  for  their  loss  as  if  they  were  properly  baggage.* 

But  in  order  to  make  the  company  liable  under  such  circumstances,  the  facts 
must  be  such  as  to  leave  no  room  for  mistakes.  The  package  must  be  such  as 
to  obviously  indicate  that  its  contents  are  not  baggage.  Thus,  where  a  traveller 
carried  with  him  a  box  covered  with  a  black  leather  case,  on  the  top  of  which  was 
painted  in  the  centre,  lengthwise,  his  name,  in  white  letters  about  two  inches 
long,  and  on  each  end  of  which  was  painted  the  word  "glass,"  also  in  white 
letters  about  two  inches  long,  and  which  had  around  it  two  black  leather  straps 
between  the  words  "glass,"  it  was  held  that  the  appearance  of  the  box  did  not 
so  plainly  indicate  that  its  contents  were  merchandise  as  to  render  the  plaintiff 
liable  for  its  loss.  Erle,  C.  J.,  said:  "  It  seems  to  me  that  it  would  be  intro- 
ducing a  most  pernicious  rule  to  hold  that  if  a  package  which  from  its  appear- 
ance is  likely  to  contain  merchandise  is  brought  to  a  railway  by  a  passenger, 
the  company's  servants  are  bound  to  inquire  whether  it  consists  of  what  is 
ordinarily  understood  to  be  personal  luggage,  or  merchandise,  at  the  peril  of 
being  held  liable  for  a  loss  if  loss  occurs."^  So  in  a  Canadian  case.  Here  it 
appeared  that  the  plaintiff  delivered  to  the  defendants'  servant  a  box  containing 
only  rare  plants  and  roses  intended  for  sale,  saying  that  he  would  pay  for  it,  and 
the  servant,  after  examining  his  ticket,  said  that  there  was  nothing  to  pay,  and 
that  it  might  go  with  the  plaintiff  in  the  train.  The  plaintiff  testified  that  the 
box  was  marked  somewhere  "Plants  —  Perishable,"  but  he  could  not  say  that 
defendants'  officers  saw  it,  and  it  was  sworn  that  if  they  had  been  notified  that  it 

London  etc.  R.  Co.,  10  C.  B.  (N.  8.)  154;  «.  c.  ■»  Great    Northern    R.  Co.  v.  Shepherd,  7 

7  Jur.   (N.  s.)  1164;  30  L.  J.    (C.  P.)  289;  9  Eng.  Rail.  Cas.  310;  s.  c.  8  Exch.  30;  21  L.  J. 

Week.  Rep.  653;  4  L.  T.  (N.  S.)  246  (afflrnied  (Exch.)  286;  Stoneman  v.  Erie  R.  Co.,  52  N. 

on  appeal,  13  C.  B.  (n.  S.)  818;  8  Jur.  IN.  S.)  Y.  429;  Hellmau  v.  IloUaday,  1  Woolw.  365; 

1063;  31  L.  J.  (C.  P.)  271;  10  Week.  Rep.  391) ;  Minter  v.  Pacific  R.  Co.,  41  Mo.  503.    But  see 

Michigan  etc.  R.  Co.  v.  Oehm,  56  111.  294;  Leo  Blumantle  v.  Fitchburg  R.  Co.,  20  Alb.  L.  J. 

V.  Grand  Trunk  R.  Co.,  36  Upper  Canada  Q,  354. 

B.  350.  5  cahill  v.  London  etc.  R.  Co.,  10  C.  B.  (n. 

1  Camden  etc.  R.  Co.  v.  Baldauf,  16  Pa.  St.  8.)  154;  s.  c.  7  Jur.  (n.  s.)  llfrt;  30  L.  J.  (C. 
78,  Rogers,  J.  P.)  289;  9  Week,  i^cp.  6,-)3;  4  L.  T.  (N.  s.)  246 

2  Brooke  V.  Pickwick,  4  Bing.  218.  (afllnned  on  appeal,   13  C.  B.  (N.  8.)  818;  8 

3  Phillips   V.  Earle,  8  Pick.  ^82;  Rclfif  v.  Jur.    (n.   S.)   1063;    31  L.  J.   (0.  P.)  271;  10 


Rapp,  3  Watts  &  S.  21.  Week.  Rep.  391). 


524  passenger's  baggage. 


Notes. 


was  freight  or  merchandise  it  would  not  have  been  taken.    On  these  facts  the 
court  held  that  the  defendants  were  not  liable. i 

§  10.  Baggage  of  Gratmtous  Passenger.  —  Public  policy  requires  that  com- 
mon carriers  should  exercise  the  same  extreme  care  for  the  safety  of  persons 
carried  gratuitously  which  the  law  demands  of  them  when  carrying  passengers 
for  hire.^  With  respect  to  the  baggage  of  persons  riding  free,  the  case  is  alto- 
gether different,  and  the  rule  of  public  policy  does  not  apply.  The  carrier  is 
not  the  insurer  of  his  passengers,  but  is  required  to  use  extreme  care  and  dili- 
gence to  provide  for  their  safety.  As  to  the  baggage  of  such  passengers  he  is,  with 
the  familiar  exceptions,  an  insurer,  and  the  theory  is  that  his  compensation  as 
insurer  is  represented  by  the  fare  paid  for  the  carriage  of  the  passenger.  Where 
the  carriage  is  gratuitous,  it  would  seem  to  be  a  hprdship  to  require  of  him  this 
high  degree  of  liability  for  the  safe  carriage  of  baggage  for  the  carriage  of  which 
he  receives  no  compensation.  A  more  equitable  view  would  render  him  liable 
only  as  a  gratuitous  bailee.  It  was  so  held  by  Chief  Justice  Cooley  in  a  recent 
decision  of  the  Supreme  Court  of  Michigan.'  But,  so  long  as  the  passage-money 
is  paid,  it  is  not  indispensable  that  it  should  be  paid  in  advance  in  order  to  hold 
a  carrier  liable  for  the  loss  of  baggage.*  Nor  does  it  matter  whether  it  is  paid 
by  the  passenger  himself,  or  by  some  other  person  for  him.^ 

§  11.  Lien  upon  Baggage  for  Fare.  —  The  carrier  is  liable  "i«  respect  of  his 
reward,''''  as  the  old  cases  put  it,  and  a  carrier  of  goods  has  a  lien  upon  them  to 
secure  unpaid  freight.  So  too  a  carrier  of  passengers  may  retain  the  baggage 
of  a  traveller  to  secure  the  payment  either  of  his  fare  or  of  charges  for  extra  bag- 
gage.^ Lawrence,  J.,  said,  in  an  early  English  case :  "  The  master  of  a  ship  has 
certainly  no  lien  on  the  passenger  himself,  or  the  clothes  which  he  is  actually 
wearing  when  he  is  about  to  leave  the  vessel,  but  I  think  the  lien  does  extend  to 
any  other  property  he  may  have  on  board.  A  certain  sum  is  agreed  to  be  given 
for  carrying  the  man  and  the  luggage.  I  think  the  captain  has  a  lien  for  this 
upon  the  luggage.  In  detaining  that,  there  is  no  greater  inconvenience  than  in 
the  common  case  of  goods  and  merchandise  carried  on  freight,  and  there  is  no 
reason  why  there  should  not  be  the  same  lien  for  the  recovery  of  passage-money 
as  for  the  recovery  of  freight." ' 

§  12.  Carriers  of  Baggage  only.  —  In  a  case  in  the  New  York  Superior  Court, 
the  distinction  between  baggage  proper  and  articles  improperly  packed  with  it 

»  Lee  V.  Grand    Trunk  R.  Co.,  36  Upper  s.  c.  16  Jur.  124;  21  L.  J.  (C.  P.)  34;  Van  Horn 

Canada  Q.  B.  350.  v.  Kermit,  4  E.  D.  Smith,  454 ;  Malone  v.  Bos- 

-  Phila.  etc.  R.  Co.  v.  Derby,  ante,  p.  31.  ton  etc.  R.  Co.,  12  Gray,  3SS;  Pearson ».  Du- 

3  Flint  etc.  R.  Co.  v.  Wier,  37  Mich.  111.  ane,  ante,  pp.  17,  IS,  20. 

But  see  Bean  v.  Green,  12  Me.  422;  Mobile  o  Wolf  v.  Summers,  2  Camp.  631;  Rumsey 

etc.  R.  Co.  V.  Hopkins,  41  Ala.  493;  Malone  w.  North -Eastern  R.  Co.,  14  C.  B.  (x.  s.)  641; 

V.  Boston  etc.  R.  Co.,  12  Gray,  388.  s.  c.  32  L.  J.  (C.  P.)  244;  11  Week.  Rep.  911 ;  S 

<  Van  Horn  v.  Kermit,  4  E.  D.  Smith,  454;  L.  T.  (N.  s.)  666;  10  Jur.  (N.  S.)  208;  Norde- 

McGill  V.  Rowand,  3  Pa.  St.  451;  Flaherty  meyer  i>.  Loescher,  1  Hilt.  499;  Hutchings  f. 

V.  Gi-eennam,    7    Daly,   481;    Block  v.   The  Western  etc.  R.  Co.,  25  Ga.  61 ;  South-West- 

Steamboal  Trent,  IS  La.  An.  664.  em  R.  Co.  v.  Bently,  51  Ga.  311. 

8  Marshall  v.  York  etc.  R.  Co.,  11 C.  B.  655 ;  '  Wolf  v.  Summers,  stipra. 


CARRIERS    OF    BAGGAGE    ONLY.  525 


Contracts  limiting  Liability. 

was  extended  to  the  case  of  carriers  of  baggage  ■who  do  not  carry  the  person 
of  the  passenger.  It  held  that  a  city  express  company,  engaged  in  carrying 
the  trunks  of  travellers  to  and  from  the  various  passenger-depots  in  the  city, 
was  not  responsible  for  the  loss  of  articles  packed  in  such  a  trunk  which  were 
not  properly  baggage,  on  the  ground  that  its  contract  was  to  carry  a  trunk  con- 
taining the  ordinary  baggage  of  a  traveller  and  nothing  else.i  This  view  is 
believed  to  be  erroneous.  Such  a  carrier  is  in  an  entirely  different  position  from 
that  of  a  carrier  of  passengers.  He  is  a  carrier  of  goods,  strictly  speaking,  and 
if  he  wishes  to  be  relieved  of  the  risk  incident  to  the  carriage  of  articles  of  great 
value,  he  should  take  the  usual  precautions  by  making  suitable  regulations  look- 
ing to  that  end.  If  he  receives  a  trunk  without  inquiries  as  to  the  value  of  its 
contents,  and  it  is  lost,  he  can  blame  only  his  own  improvidence  if,  after  loss,  he 
finds  that  he  assumed  a  greater  responsibility  than  he  anticipated." 

§  13.-  Liability  of  Carrier  lor  Loss  ol  Baggage,  how  limited  by  Con- 
tract. —  It  seems  to  be  well  settled  that  the  carrier  may  by  express  contract  limit 
his  liability  as  insurer  of  the  safe  carriage  of  the  passenger's  baggage.^  It  is  not 
always  easy  to  determine  whether  such  a  contract  has  been  made.  Some  of  the 
cases  in  which  it  has  been  held  that  the  carrier  is  released  from  his  extraordinary 
liability  by  agreement  with  the  passenger  are  hardly  to  be  distinguished  from 
those  in  which  he  has  sought  to  release  himself  by  giving  notice  that  he  will  not 
be  liable  for  the  loss  of  baggage.  A  few  examples  will  suffice.  The  passage-ticket 
of  a  steamship  company  contained  the  following  conditions :  "  The  ship  will  not  be 
accountable  for  luggage,  goods,  or  other  description  of  property,  unless  bills  of 
lading  have  been  signed  therefor."  "  Each  first  and  second  class  adult  passen- 
ger allowed  to  have  twenty  cubic  feet  of  luggage  free,  but  no  merchandise,  plate, 
jewelry,  precious  stones,  specie,  or  bullion  will  bo  carried  as  luggage."  The 
court  held  that  the  terms  of  the  ticket  absolved  the  carrier  from  liability  for  loss 
of  the  baggage  occasioned  by  the  negligence  of  the  captain.*  In  another  case, 
the  plaintiff  paid  for  his  passage  and  received  the  following  receipt :  — 

"Bingham's  Emigrant  Line,  Phila.,  Oct.  21,  1840. 

"No.  156.  Eeceived  of  Messrs.  Rogers  &  McDonald  $32.51,  for  two  seats  to 
Pittsburgh,  and  545  pounds  extra  baggage,  including  one  trunk  already  forwarded. 

«'  Each  passenger  is  entitled  to  fifty  pounds  baggage  free.  All  baggage  at  the 
risk  of  the  owner.  Bingham  &  Buothers, 

"Per  M.  Davis." 

This  receipt  was  held  to  release  the  carrier  from  his  ordinary  liability. ^ 

It  should  be  distinctly  understood,  however,  that  the  general  rule  is  that  the 

>  Richards  v.  Westcott,  2Bo8W.  589.  Best  &  S.  594;  Davidson  v.  Graham,  2  Ohio 

s  Parmelee  v.  Lowitz,  74  111.  116.  St.  132 ;  s.c.3  Am.  L.  Reg.  291. 

8  Wilton  V.  Royal  etc.  Nav.  Co.,  10  0.  B.  <  Wilton  v.  Royal  etc.  Nav.Co.,  lOC.B.  (n. 

(N.  8.)  453;  8  Jur.  (N.  S.)  232;  30  L.  J.  (C.  P.)  8.)  452;  s.  c.  8  Jur.  (N.  S.)  232;  30  L.  J.  (C.  P.) 

369;  9  Week.   Rep.  748;  4  L.  T.  (N.  8.)  706;  369;  9  Week.   Rep.  748;  4  L.  T.    (N.  S.)   706. 

Moore  v.  Evans,  14  Barb.  524;    Bingham  v.  See  also   Mobile  etc.  R.  Co.  v.  Hopkins,  41 

Rogers,  6  Watts  &  S.  495;  Atwood  v.  Reli-  Ala.  486;  Penn.  etc.  R.  Co.  v.  Schwarzen- 

ance   Transp.    Co.,  9  Watts,    87;    T.aing   v.  burg,  45  Pa.  St.  20S;  Laing  v.  Colder,  8  Pa. 

Colder,  8  Pa.  St.  479;  Peninsular  etc.  Nav.  St.  479. 

Co.  V.  Shand,  11  Jur.  (N.  s.)  771 ;  s.  c.  12  T.,.  T.  ^  Bingham  v.  Rogers,  6  Watts  &  S.  495. 
(N.  8.)  808;  Zungr.  South-Eastern  R.  Co.,  10 


526  passenger's  baggage. 


Notes. 


power  of  the  carrier  to  limit  his  liability  by  an  express  contract  with  the  passen- 
ger extends  only  to  the  carrier's  extraordinary  liability  as  insurer.  The  policy 
of  the  law  forbids  that  any  bailee  for  hire  should  by  contract  relieve  himself 
from  liability  for  injuries  or  losses  consequent  upon  the  negligence  or  wilful 
default  of  himself  or  his  servants.^ 

§  14.  Liability  of  Carrier  for  Loss  ol  Baggage,  how  limited  by  Notice  — 
English  Railway  and  Canal  Traffic  Act.  —  Intimately  connected  with  the  fore- 
going is  the  consideration  of  "carriers'  notices."  A  full  and  complete  discus- 
sion of  these,  their  origin  and  effects,  and  the  vacillation  which  has  characterized 
the  English  courts  in  dealing  with  them,  is  impracticable  within  the  limits  of 
this  note.  Furthermore,  many  of  the  cases  in  which  the  principles  governing 
them  have  been  adjudicated,  properly  belong  to  the  subject  of  carriers  of  goods.^ 
It  is  sufficient  for  present  purposes  that  their  effect  is  controlled  in  England  by 
statutory  enactment  making  railroad  and  canal  companies  liable  for  the  loss  of 
any  thing  received  for  carriage,  notwithstanding  any  notice,  declaration,  or  condi- 
tion made  or  given  by  such  company  to  the  contrary,  or  in  anywise  limiting  such 
liability ;  but  providing  that  nothing  contained  in  the  act  shall  be  construed  to 
prevent  the  company  from  making  special  contracts '  relative  to  the  carriage  of 
such  articles.*  This  enactment  simply  restores  the  doctrines  of  the  common 
law,  and  is  held  to  be  applicable  to  carriers  of  passengers  in  respect  of  their 
liability  for  the  loss  of  the  baggage  of  passengers.* 

In  this  country  the  cases  upon  this  point  are  in  considerable  confusion.  In 
New  York  it  has  been  so  often  decided  that  a  carrier  cannot,  by  a  general  notice 
to  the  public,  limit  his  liability,  that  in  that  State  the  question  may  be  considered 
as  settled.^  Nor  will  such  a  notice  have  the  effect  to  relieve  the  carrier  of  liabil- 
ity even  though  brought  home  to  the  passenger.'  The  same  rule  prevails  in 
Ohio  .8 

In  Pennsylvania,  however,  there  is  a  different  rule.  Such  a  notice  seems  to 
be  held  equivalent  to  a  contract,  and  to  have  the  effect,  if  brought  home  to  the 
knowledge  of  the  passenger,  of  limiting  or  releasing  the  liability  of  the  carrier 
as  insurer,  according  to  its  terms.* 

§  15.  What  will  constitute  Notice.  —  Admitting  the  right  of  the  carrier  to 
restrict  his  liability  for  safe  carriage  of  the  passenger's  baggage,  it  becomes  a 
material  question  as  to  what  notice  will  be  sufficient  for  this  purpose.    It  seems 

1  Mobile  etc.  R.  Co.  v.  Hopkins,  41  Ala.  486;  v.  Goodmn,  19  Wend.  251;  Camden  etc.  R. 
Davidson  v.  Graham,  2  Ohio  St.  132;  s.  c.  3  Co.  v.  Belknap,  21  Wend.  354;  Rawson  v. 
Am.  L.  Reg.  291 ;  Lawson  on  Car.,  §§  28,  29,  Pennsylvania  R.  Co.,  48  N.  Y.  212 ;  s.c.2  Abb. 
et  seq.  Pr.  (N.  S.)  220. 

2  Consult   upon  this  subject  the  recent  '  Clark  v.  Taxton,  21  Wend.  153;  Camden 
able  and  exhaustive  analysis  of  Mr.  Lawson,  etc.  R.  Co.  v.  Burke,  13  Wend.  611. 
referred  to  supra,  8  Jones  v.  Voorhees,  10  Ohio,  145 ;  David- 

3  Peninsular  etc.  Steam  Nav.  Co.  v.  Shand,  son  v.  Graham,  2  Ohio  St.  132;  s.  c.  3  Am.  L. 
11  Jur.  (N.  S.)  771;  s.  c.  12  L.  T-  (N.  s.)  808.  Reg.  291. 

<  The  Railway  and  Canal  Traffic  Act,  17  '  Atwood  v.  Reliance  Transp.  Co.,  9  Watts, 

&  18  Vict.,  c.  31,  §  7.  87;  Bingham  v.  Rogers,  6  Watts  &  S.  495; 

5  Cohen  v.  South-Eastern  R.  Co.,  2  Exch.  Laing  v.  Colder,  8  Pa.  St.  484;  WhiteseU  v. 
Div.  253 ;  $.c.\  Exch.  Div.  217.  Crane,  8  Watts  &  S.  369. 

6  HoUister  v.  Nowlen,  ante,  p.  483;    Cole 


LIMITATION    OF    LIABILITY    BY    NOTICE.  527 


What  is  a  Good  Notice. 


clear  that  such  a  notice  merely  placarded  in  the  office  of  the  carrier  can  not  have 
the  desired  effect,  in  the  absence  of  evidence  that  the  passenger  read  it  or  was 
aware  of  its  contents. ^ 

The  leading  case  upon  this  subject  is  that  of  Henderson  v.  Stevenson.'^  The 
condition  or  notice  was  there  printed  upon  the  back  of  the  ticket.  The  notice 
itself  was  totally  absurd,  as  it  was  intended  to  operate  as  a  discharge  of  the 
carrier  from  every  species  of  liability  to  the  passenger.  However,  the  case  is 
valuable  in  the  aspect  we  are  considering,  as  the  discussion  turned  entii-ely  upon 
the  consideration  of  sufficiency  of  notice. 

In  a  recent  case  decided  by  the  Superior  Court  of  New  York,  it  appeared  that 
the  agent  of  a  transfer  company  approached  the  plaintiff  upon  the  cars,  asking 
for  baggage.  The  plaintiff  gave  him  his  check,  and  received  in  exchange  a 
printed  receipt  marked  "Domestic  Bill  of  Lading."  This  receipt  contained 
conditions  of  carriage  releasing  the  carrier  from  his  liability  at  law  for  dam- 
ages beyond  the  sum  of  $100,  unless  specially  compensated.  When  the  receipt 
was  delivered,  the  light  in  the  cars  was  so  indistinct  that  it  was  impossible  to 
read  it,  and  the  plaintiff,  upon  receiving  it,  put  it  into  his  pocket  without 
attempting  to  read  it.  The  court  held  that  under  such  circumstances  it  did 
not  constitute  a  contract  between  the  plaintiff  and  the  carrier,  and  that  the 
liability  of  the  latter  was  unaffected  thereby.* 

In  an  earlier  case  in  the  same  court,  it  was  said  of  a  condition  on  a  passage- 
ticket  releasing  the  carrier  from  liability  for  the  carriage  of  baggage  of  value 
greater  than  $100:  "We  cannot  on  principle  regard  such  a  memorandum,  or 
any  memorandum  on  a  passenger's  ticket,  as  constituting  a  contract  between 
the  carrier  and  the  passenger.  These  tickets  are  usually  received  and  paid 
for  in  the  bustle  of  a  crowd,  and  it  is  unreasonable  to  suppose  that  the  pas- 
senger reads  and  assents  to  the  terms  of  a  memorandum  printed  thereon ; 
besides,  they  are  surx-endered  to  the  conductor  of  the  cars  or  collector  on  the 
boat.  If  contracts,  the  plaintiff  would  be  entitled  to  retain  them  as  evidence 
of  his  right,  as  in  the  case  of  a  bill  of  lading,  until  the  safe  delivery  of  his 
baggage.  Such  tickets  are  rather  tokens  or  evidences  of  the  right  of  the  pas- 
senger to  a  seat  in  the  cars  or  accommodation  on  the  boat,  from  the  fact  of 
having  paid  the  fare,  and  they  have  fulfilled  all  their  purpose  when  that  right  is 
admitted  by  the  call  for  and  surrender  of  the  tickets."*  And  in  Virginia  a  veiy 
well-considered  case  is  authority  for  the  view  that  such  a  condition  printed  upon 
the  back  of  a  railway  ticket  will  not  be  binding  upon  the  passenger  unless  it 
appears  that  he  read  it  before  the  cars  started.^ 

In  a  Massachusetts  case,  without  deciding  the  vexed  question  as  to  the  effect 
of  such  a  condition,  the  court  held  that  the  mere  printing  of  the  condition  upon 
the  back  of  a  railway  ticket,  and  detached  from  what  ordinarily  contains  all  that 
is  material  to  the  passenger,  will  not  raise  a  legal  presumption  that  at  the  time 

1  Brooke  v.  Pickwick,  4  Blng.  218;  Bean  v.  vania  R.  Co.,  48  N.  Y.  212;  «.  c.  2  Abb.  Pr.  (n. 

Green,  12  Me.  422;  Henderson  v.  Stevenson,  S.)  220;  Steers  v.  Liverpool  etc.  Steam  Co., 57 

L.  R.  2  So.  App.  470,  473,  per  the  Lord  Chan-  N.  Y.  1. 
cellor.                                           ^  Supra.  ^  Wilson  v.  Chesapeake    etc.  R.   Co.,  21 

'  Madan  v.  Sherrard,  10  Jones  &  Sp.  353.  Gratt.  654.    See  also  llawson  v.  Pennsylvania 

See  also  Blossom  v.  Dodd,  43  N.  Y.  2&4.  R.  Co.,  48  N.  Y.  212;  s.  c.  2  Abb.  Pr.   (N.  8.) 

*  Nevins  v.  Bay  State  Steamboat  Co.,  4  220;   Henderson  v.  Stevenson,  L.  R.  2.  Sc. 

Bosw.  225, 234.    See  also  Rawson  v.  Pennsyl-  App.  470. 


528  passenger's  baggage. 


Notes. 


of  receiving  the  ticket,  and  before  the  train  left  the  station,  the  traveller  had  a 
knowledge  of  its  terms.  The  opinion  further  distinguishes  this  from  the  case 
of  a  receipt  given  bj-  a  carrier  of  goods.  Dewey,  J.,  said:  "  I  am  aware  that, 
in  reference  to  ordinary  merchandise  transported  by  common  carriers,  it  has 
been  held  in  some  cases  in  the  English  courts  that  a  ticket  given  to  the  owner  of 
merchandise,  containing  on  the  face  of  it  a  condition  or  limitation  of  the  liability 
of  the  carrier,  was  held  to  furnish  evidence  of  the  special  contract  of  transpor- 
tation, sufficient  to  affect  the  owner  of  the  merchandise  and  to  limit  the  liability 
of  the  carrier.!  These  cases  obviously  differ  from  the  present,  and  fail  to  satisfy 
us  of  the  sufficiency  of  the  notice  in  the  case  before  us."  ^ 

There  seems,  on  principle,  to  be  less  objection  to  the  doctrine  as  stated  by  Mr. 
Justice  Shipmax  of  the  United  States  Circuit  Court  for  the  Southern  District  of 
New  York.  It  appearing  that,  at  the  time  the  check  was  given  for  the  trunk, 
there  was  delivered  with  it  a  paper  containing  a  printed  notice  that  the  carrier 
would  not  "become  liable  for  merchandise  or  jeweliy  contained  in  baggage 
received  upon  baggage-checks,  nor  for  loss  by  fire,  nor  for  an  amount  exceeding 
one  hundred  dollars  upon  any  article,  unless  specially  agreed  for  in  writing  on 
this  check-receipt,  and  the  extra  risk  paid  therefor,"  together  with  a  statement 
that  the  owner  thereby  agreed  that  the  carrier  should  be  liable  only  as  above, 
the  court  held  that  the  passenger  was  chargeable  with  notice  of  the  contents  of 
the  paper,  and  that  the  carrier  was  liable  only  in  accordance  with  its  terms. ^ 

It  is  provided  by  statute  in  New  Jersey  that  the  responsibility  of  railroad 
companies  as  carriers  of  baggage  shall  be  limited  to  .$100  for  every  hundred 
pounds  of  baggage,  in  cases  where  notice  to  that  effect  is  given  by  being  placed 
in  a  "  conspicuous  place  in  the  receiving-office  for  baggage  "  of  the  company 
and  "  inserted  in  the  tickets  given  to  the  passengers."  *  It  was  held  by  the  Penn- 
sylvania court,  that,  in  order  to  take  advantage  of  this  act,  the  carrier  must 
clearly  show  that  the  notice  was  inserted  in  the  passengers'  tickets  as  well  as 
placarded  in  the  office.* 

§  16.  An  Exception  under  the  Railway  and  Canal  Trafllc  Act  —  Excursion 
Trains.  —  There  is  a  class  of  English  cases  in  which  the  court  hold  that,  not. 
withstanding  the  act  of  Parliament  previously  mentioned,^  it  is  competent  for 
the  carrier  to  limit  his  liability  by  notice.  Where  a  railway  company  issued 
■excursion  tickets  at  reduced  prices,  "  subject  to  the  conditions  contained  in  the 
company's  time  and  excursion  bills,"  and  the  bills  contained  this  condition, 
"Luggage  under  60  pounds  free,  at  passenger's  own  risk,''  and  the  purchaser  of 
one  of  these  tickets  had  the  means  of  knowing,  but  did  not  in  fact  know,  of  the 
condition,  it  was  held  that  he  could  not  recover  for  the  loss  of  his  baggage 
during  the  transit,  though  it  was  properly  addressed  and  he  was  not  allowed 
to  retain  it  under  his  personal  control.''    The  reason  for  this  decision,  though 

»  Citing  Austin  v.  Manchester  etc.  R.  Co.,  *  Rev.  N.  J.  1877,  p.  913,  §  27;  Acts  N.  J. 

10  C.  B.  454;  Shaw  v.  York  etc.  R.  Co.,  6Eng.  1853,  p.  396. 

Rail.  Cas.  87 ;  s.  c.  13  Q   B.  347.  s  Brown  v.  Camden  etc.  B.  Co.,  83  Pa.  St. 

s  Brown  v.  Eastern  R.  Co.,  11  Cush.  101.  316. 

3  Hopkins  v.  Westcott,  6  Blatchf.  64.    See  «  Ante,  §  14,  The  Railway  and  Canal  Traffic 

also  New  York  etc.  R.  Co.  v.  Fralotf,  9  Cent.  Act,  17 &  18  Vict.,  c.  31,  §  7. 

li.  J.  432;  s.  c.  20  Alb.  L.  J.  409;  8  Reporter,  ■  Stewart  v.  London  etc.  R.  Co.,  3  Hurl.  & 

801;  ante,  p.  50/2.  Colt.  135;  s.  c.  10  Jur.  (N.  S.)  805;  33  L.  J. 


EXCURSION    TRAINS.  529 


Regulations  —  Notice  to  Passenger. 


not  very  clearly  expressed  in  the  opinion  of  the  court,  is  evidently  that  a  carrier 
is  under  no  obligation  to  make  excursion  rates  for  the  passenger's  carriage,  and 
such  rates  therefore  form  essentially  a  special  contract.  The  time  and  excursion 
bills  are  a  proposal  on  the  part  of  the  carrier  for  a  special  contract  of  carriage, 
and  if  the  passenger  has  the  opportunity  of  learning  from  them  the  terras  of  the 
agreement,  it  is  his  duty  to  do  so,  and  the  law  presumes  that  he  has  done  so 
before  he  assents  to  the  special  contract  by  taking  his  place  in  the  cars.  Per- 
mitting a  passenger  to  carry  baggage  on  an  excursion  ti'ain  is  ex  gratia  at  most. 
If  the  passenger  insists  upon  going  upon  an  excursion  train  and  carrying  his 
baggage,  the  company  may,  in  the  absence  of  any  agreement  to  a  different  effect, 
demand  a  compensation  for  the  carriage  of  such  baggage,  and  hold  it  until  the 
charges  are  paid.^ 

§  17.  Regulations  of  the  Carrier  in  respect  of  Baggage  —  Notice  to  Passen 
ger.  —  Although  the  correct  rule  seems  to  be  that  a  carrier  cannot  limit  his  lia- 
bility by  a  mere  notice  that  he  v^ill  not  be  responsible  beyond  a  certain  extent, 
yet  there  is  no  reason,  either  on  principle  or  the  authority  of  adjudicated  cases, 
why  he  may  not  make,  for  his  own  protection  and  for  the  greater  safety  of  the 
baggage,  such  reasonable  regulations  for  the  checking,  custody,  and  carriage  of 
the  baggage  as  may  be  suggested  by  reason  and  experience.^  But  the  carrier 
cannot  take  advantage  of  a  failure  of  the  passenger  to  comply  with  such  a  regu- 
lation, unless  the  regulation  is  in  itself  of  a  reasonable  and  proper  nature.  A 
regulation  forbidding  the  passenger,  who  pays  an  extra  price  for  a  state-room  on 
n  steamboat,  from  taking  his  baggage  with  him  into  it,  except  at  his  own  risk, 
is  not  a  reasonable  regulation  so  far  as  it  relates  to  light  baggage  or  hand- 
satchels  containing  articles  required  for  use  in  travel,  and  a  failure  of  the  pas- 

(Exch.)  199;  12  Week.  Rep.  689;  10  L.  T.  (N.  things  whatsoever  carried  upon  the  railway 

S.)  302.  with  any  passenger,  other  than  such  pas- 

1  Rumsey  v.  North-Eastern  R.  Co.,  14  C.  senger's  articles  of  clothing  not  exceeding 
B.  (N.  s.)  641;  s.  c.  32  L.  J.  (C.  P.)  244;  11  tlie  weight  and  dimensions  aforesaid;  pro- 
Week.  Rep.  911;  8  L.  T.  (N.  S.)  666;  10  Jur.  vided,  that  nothing  contained  in  the  act  shall 
(N.  8.)  208.  Compare  Najac  v.  Boston  etc.  extend  to  make  the  company  liable  further 
R.  Co.,  7  Allen,  329.  than  where,  according  to  law,  stage-coach 

2  Macklin  «.  New  Jersey  steamboat  Co.,  7  proprietors  and  common  carriers  would  be 
Abb.  Pr.  (N.  S.)  229;  s.  c.  9  Am.  L.  Reg.  (N.  liable.  Sect.  144  enables  the  company  to 
8.)  239;  Baldwin  v.  Collins,  9  Rob.  (La.)  468;  make  by-laws  "  for  the  good  government  of 
Freeman  v.  Newton,  3  E.  D.  Smith,  246;  Wil-  the  attairs  of  the  company,  and  for  the  man- 
liams  V.  Keokuk  etc.  Packet  Co.,  5  Cent.  L.  agement  of  the  said  undertaking."  The 
J.  400;  Gleason  v.  Goodrich  Transp.  Co.,  32  company  made  a  by-law  that  every  first- 
Wis.  86.  Of  course,  a  carrier  corporation  class  passenger  should  be  allowed  to  cai'ry 
cannot  make  regulations  which  are  in  con-  one  hundred  and  twelve  pounds  of  luggage 
travention  of  the  provisions  of  its  charter.  free  of  charge,  but  that  the  company  would 
The  one  hundred  and  sixty-ninth  section  of  not  be  responsible  for  the  care  of  the  same 
the  5  &  6  VVm.  IV.,  c.  107,  which  incorporated  unless  booked  and  the  carriage  thereof  paid 
the  Great  Western  Railway,  enacts  that,  for.  It  was  held  that  the  company  had  no 
without  extra  charge,  it  shall  be  lawful  for  i)ower  to  make  this  by-law,  since  it  was  in 
every  passenger  travelling  upon  the  railway  contravention  of  the  one  hundred  and  sixty- 
to  take  with  him  articles  of  clothing  not  ninth  section.  Williams  v.  Great  Western 
exceeding  forty  pounds  in  weight  and  four  l^.  Co.,  10  Exch.  15.  See  also  Munster  v. 
cubic  feet  in  dimensions;  and  that  the  com-  bouth-Eastern  K.  Co.,  4  C.  B.  (N.  s.)  676;  «.  c. 
paiiy  shall  iu  uo  case  be  respousible  for  any  4  Jur.  (N.  8.)  738;  27  L.  J.  (C.  P.)  308. 

84 


530  passenger's  baggage. 


Notes. 


senger  to  cdiiiply  with  it  will  not  exonerate  the  carrier  from  liability  for  the 
loss  of  such  baggage. 1 

Not  only  must  the  regulation  be  reasonable,  but  it  must  appear  that  notice  of 
it  was  brought  home  to  the  passenger.^  The  carrier,  too,  must  extend  to  the 
passenger  every  facility  for  complying  with  the  regulation.*  A  notice  posted  in 
defendant's  steamboat,  that  the  owners  will  not  be  liable  for  baggage  unless  it 
is  checked,  will  not  protect  them  against  the  claim  of  a  passenger  who  delivered 
his  baggage  to  their  agent  on  board  the  boat  and  demanded  a  check,  but  failed 
to  obtain  it  because  the  person  whose  duty  it  was  to  give  checks  was  not  present.* 

§  18.  Liability  ol  Carrier  limited  by  Statute.  —  It  has  sometimes  been  seen 
fit  to  limit  the  common-law  liability  of  carriers  by  legislative  enactment.  When 
this  has  been  done  in  general  terms,  it  is  held  that  the  provision  extends 
to  the  case  of  a  passenger's  baggage  equally  with  that  of  goods  which  are 
delivered  for  transportation.  An  act  of  Congress  providing  that  the  owner  of  a 
vessel  shall  not  be  liable  for  loss  or  damage  "  which  may  happen  to  any  goods 
or  merchandise  whatsoever  which  shall  be  shipped,  taken  in,  or  put  on  board 
any  such  ship  or  vessel,  by  reason  or  by  means  of  any  fire  happening  to  or  on 
board  the  said  ship  or  vessel,  unless  such  fire  is  caused  by  the  design  or  neglect 
of  such  ovpner  or  owners,"  ^  was  held  to  include  in  the  terms  "any  goods  or 
merchandise  "  the  ordinary  baggage  of  passengers.' 

§  19.  Duties  of  the  Passenger  in  respect  of  Baggage  during  Transit. — 
Having  delivered  his  baggage  to  the  carrier,  the  passenger  is  charged  with  no 
further  duty  or  care  concerning  it  until  arrival  at  his  destination.  The  car- 
rier undertakes  to  carry  the  baggage,  and  this  undertaking  involves  the  duty 
of  making  all  necessary  changes  of  vehicles,  transshipments,  etc.,  that  may  be 
necessary  to  accomplish  that  object.  It  is  not  the  duty  of  the  passenger  to 
inquire  for  his  baggage  at  a  change  of  vehicles,  nor  to  see  that  it  is  properly 
shipped,  and  his  failure  to  do  so  will  not  relieve  the  carrier  from  a  liability  for 
its  loss.' 

§  20.  Liability  ol  Sleeping-Car  Companies  for  Loss  of  Baggage  and  Valu- 
ables.—  It  seems  to  be  settled  by  the  few  adjudged  cases  upon  this  subject  that 
sleeping-car  companies  are  to  be  regarded  neither  as  innkeepers  nor  common 
carriers,  nor  subject  to  the  onerous  liabilities  of  either  in  respect  of  the  prop- 

1  Macklin  v.  New  Jersey  Steamboat  Co.,  ^  9  xj.  S.  Stats,  at  Large,  635,  §  1;  U.  S. 

7  Abb.  Pr.  (N.  8.)  229;  s.  c.  9  Am.  L.  Reg.  (N.  Rev.  Stats.,  §  4282.    For  a  full  examination 

S.)  237.  of  the  United  States  statutes  affecting  car- 

=  Baldwin   v.  Collins,  9   Rob.    (La.)  468;  riers  of  passengers,  see  Chap.  XV.,  §  17,  owfe, 

Macklin   v.  New   Jersey  Steamboat   Co.,  7  p.  475. 

Abb.  Pr.  (N.  8.)  229;  s.  c.  9  Am.  L.  Reg.  (N.  ^  Chamberlain  v.  Western  Transp.  Co.,  44 

S.)237;  New  York  etc.  R.  Co.  ■;;.  Fraloff,  20  N.  T.  305;  Chisholm  «;.  Northern  Transp.  Co., 

Alb.  L.  J.  409;  s.  c.  9  Cent.  L.  J.  432;  8  Re-  61  Barb.  363.    See  also  McDougall  v.  Allan, 

porter,  801,  ante,  p.  502.  6  Lower  Canada  Jur.  233.     Contra,  Dunlap 

3  Great  Western  R.  Co.  v.  Goodman,  12  C.  v.  International  Steamboat  Co.,  98  Mass.  371. 

B.  313;  16  Jur.  862;  21  L.  J.  (C.  P.)  197.  '  Campbell  v.  Caledonian  R.  Co.,  14  Scot. 

*  Freeman  v.  Newton,  8  E.   D.   Smith,  Sess.  Cas.  (n.  s.)  806;  Check  v.  Little  Miami 

246.  R.  Co.,  2  Disney,  237. 


SLEEPING-CAR    COMPANIES.  531 


Liability  for  Loss  of  Baggage  and  Valuables. 

erty  of  those  enjoying  their  accommodations.  It  is  evident  that  these  flying 
nondescripts  do  not  come  within  the  definition  of  an  inn:  "It  must  be  a  house 
kept  open  publicly  for  the  lodging  and  entertainment  of  travellers  in  general,  for 
a  reasonable  compensation.  If  a  person  lets  lodgings  only,  and  upon  a  previous 
contract  with  every  person  who  comes,  and  does  not  afford  entertainment  for  the 
public  at  large,  indiscriminately,  it  is  not  a  common  inn."  ^  The  peculiar  lia- 
bility of  the  innkeeper  is  one  of  great  rigor,  and  should  not  be  extended  beyond 
its  proper  limits; "  and  it  seems  that  it  would  be  such  an  extension  to  apply  it  to 
the  class  of  cases  under  discussion.  Thus,  the  keeper  of  a  coffee-house,  or  pri- 
vate boarding  or  lodging  house,  is  not  an  innkeeper  in  the  strict  sense  of  the 
term.'  The  proprietors  of  the  sleeping-car  cannot  be  regarded  as  liable  as 
carriers,  because  the  contract  of  carriage  has  been  made  with  the  railroad  com- 
pany;* nor  subject  to  the  same  liabilities  as  a  carrier  providing  state-rooms  for 
his  passengers,  because,  from  the  nature  of  the  accommodations  offered,  the 
same  security  against  loss  is  impossible.* 

What,  then,  shall  be  the  measure  of  responsibility  of  these  companies?  All  the 
cases  seem  to  agree  that  their  duty  is  to  exercise  at  least  ordinary  care  for  the  se- 
curity of  passengers'  valuables.  Of  course,  this  care  must  be  in  proportion  to  the 
danger  reasonably  to  be  apprehended.  Such  danger  is  greater  at  night,  while  the 
passenger  is  asleep,  than  in  the  daytime,  when  he  is  awake  and  can  care  for  him- 
self.* This  point  is  well  stated  in  a  case  previously  noticed:  "  The  scope  of  the 
liability  of  companies  of  this  kind,  so  far  as  I  know,  has  never  been  judicially 
determined.  It  is  undoubtedly  the  law  that  where  a  passenger  does  not  deliver 
his  property  to  a  carrier,  but  retains  the  exclusive  possession  and  control  of  it 
himself,  the  carrier  is  not  liable  in  case  of  a  loss,  —  as,  for  instance,  when  a  pas- 
senger's pocket  is  picked,  or  an  overcoat  or  satchel  is  taken  from  a  seat  occupied 
by  him.  Upon  this  theory,  it  is  insisted  by  defendair  that  it  cannot  be  held  liable 
for  negligence,  inasmuch  as  the  clothing  and  effeei--  of  its  guests  are  never  for- 
mally delivered  to  it.  I  cannot  for  a  moment  accede  to  this  proposition.  It  is 
scarcely  necessary  to  say  that  a  person  asleep  cannot  retain  manual  possession 
or  control  of  any  thing.  The  invitation  to  make  use  of  the  bed  carries  with  it  an 
invitation  to  sleep,  and  an  implied  agreement  to  take  reasonable  care  of  the 
guest's  effects  while  he  is  in  such  a  state  that  care  upon  his  own  part  is  impos- 
sible. There  is  all  the  delivery  which  the  circumstances  of  the  case  admit.  I 
think  it  should  keep  a  watch  during  the  night,  see  to  it  that  no  unauthorized  per- 
sons intrude  themselves  into  the  car,  and  take  reasonable  care  to  prevent  thefts 
by  the  occupants." ' 

Judged  by  the  foregoing  standard,  the  proprietors  of  a  sleeping-car  seem  to 

»  2  Kent's  Comm.  595;  Story  on  Bail.,  §  475;  "  Dausey  v.  Richardson,  3  El.  &  Bl.  144; 

Bac.  Abr.,  tit.  "  Inns  and  Innkeepers,"  (C.)  Holder  v.  S<>i.ll)y,  8  C.  B.  (N.  8.)  254;  s.  c.  29 

See  the  points  of  difference  well  stated  by  L.  J.  (C.  P.)  246;  6  Jur.  (n.  s.)  1031;  8  Week. 

Brown,  J.,  in  a  case  before  the  United  States  Rep.  438;  Kisten  v.  Ilildebrund,  9  B.  Mon.  72. 

Circuit  Court  for  the  Western  District  of  ■*  Pullman  Palace-Car  Co.  v.  Smith,  73  111. 

Tennessee.    Blum  v.  Southern  Pullman  Pal-  360. 

aceCar  Co.,  3  Cent.  L.  J.  591.  •'  Crozier  v.  Boston  etc.  R.  Co.,  43  How.  i'v. 

2  Pullman  Palace-Car  Co.  v.  Smith,  73  111.  466. 

360,  365;  Blum  v.  Southern  Pullman  Palace-  <>  Diehl  v.  Woodruff,  10  Cent.  L.  J.  66. 

Car  Co.,  supra;  Welch  v.  Pullman  Palace-  '  Brown,  J.,  in  Blum  v.  Southern  Pullman 

Car  Co.,  16  Abb.  Pr.  (N.  8.)  352.  Palace  Car  Co.,  3  Cent.  L.  J.  591,  592. 


532  passenger's  baggage. 


Notes. 


have  been  properly  held  liable  for  theft  of  a  passenger's  valuables  where  both 
the  conductor  and  poi'ter  of  the  sleeping-car  were  asleep  for  several  hours  at  the 
rear  end  of  the  car,  leaving  the  front  door  unlocked,  and  a  brakeman  of  the  train 
only  sitting  at  the  other  end.'  Also  where  the  conductor  of  the  car  quitted  the 
train  at  a  distance  of  eighty-four  miles  from  its  destination  and  permitted  it  to 
go  on  with  the  porter  only  in  attendance,  who  was  engaged  chiefly  in  blacking 
boots  in  a  room  at  the  end  of  the  car.^ 

In  cases  of  loss  for  which  these  companies  are  responsible,  the  measure  of  lia- 
bility is  the  same  as  that  of  the  common  carrier  of  passengers  under  similar 
cii'cumstances.  It  includes  only  such  property  as  the  passenger  may  reasonably 
be  supposed  to  carry  about  his  person.  It  extends  to  his  clothing  and  personal 
ornaments,  the  small  articles  of  baggage  usually  carried  in  the  hand,  and  a  rea- 
sonable sum  of  money  for  travelling  expenses.* 

§  21.  Duty  of  the  Carrier  to  deliver  Baggage  safely.  —  The  liability  of  the 
carrier  is  coextensive  with  his  custody  of  the  baggage,  and  continues  until  it  is 
safely  delivered  into  the  hands  of  the  passenger,  or  until  the  latter,  by  the  impli- 
cation derived  from  his  conduct,  relieves  the  former  from  his  extraordinary 
responsibility.*  To  constitute  a  delivery  to  the  passenger,  it  is  not  necessary 
that  the  latter  should  actually  receive  his  baggage,  but  it  is  sufficient  if  he 
assumes  control  and  direction  of  it.  Thus,  a  passenger  upon  the  Midland  Rail- 
way from  Gloucester  to  Bristol,  on  arriving  at  Bristol,  told  the  porter  that  he 
wished  to  proceed  by  the  Bristol  and  Exeter  Railway  to  Torquay.  The  porter 
thereupon  placed  his  portmanteau  on  a  truck  with  other  baggage,  entered  the 
Bristol  and  Exeter  station  with  the  truck,  passed  down  an  incline  from  the 
arrival  platform,  crossed  the  lines  of  the  railway,  and  ascended  on  an  incline 
to  the  departure  platform  of  the  Bristol  and  Exeter  Railway.  The,re  was  no 
evidence  that  the  portmanteau  was  seen  afterwards ;  however,  it  never  reached 
Torquay.  In  an  action  against  the  Midland  Railway,  the  court  held  that  there 
was  no  evidence  of  a  breach  of  their  contract  to  deliver  either  to  the  passenger 
or  at  the  departure  platform  of  the  Bristol  and  Exeter  Railway.^ 

Where  it  is  the  custom  for  the  baggage  to  be  delivered  by  the  servants  of  a 
vessel  to  a  railway  company,  and  checks  received  therefor  and  handed  to  the 
passengers  on  the  train,  the  owners  of  a  vessel  were  held  liable  for  the  loss  of  a 
passenger's  trunk  who  received  the  right  number  of  checks,  but  one  of  whose 
checks  called  for  a  trunk  not  his  own,  on  the  ground  that  there  was  no  delivery 
to  him  of  his  baggage.^ 

1  Blum  V.  Southern  Pullman  Palace-Car  R.  Co.,  19  Wis.  40;  Toledo  etc.  R.  Co.  *.  Ham- 
Co.,  supra.  mond,  33  Ind.  379 ;  Patscheider  v.  Great  West- 

2  Diehl  V.  Woodruff,  10  Cent.  L.  J.  66.  ern  R.  Co.,  3  Exch.  Div.  153 ;  Kent  v.  Midland 

3  Blum  V.  Southern  Pullman  Palace-Car  R.  Co.,L.  R.  10  Q.  B.  1 ;  s.  c.  44  L.  J.  (Q.  B.)  18; 
Co.,  3  Cent.  L.  J.  591;  Diehl  v.  Woodruff,  10  31  L.  T.  (N.  s.)  430;  23  Week.  Rep.  25;  Cole 
Cent.  L.J.  66;  Welch  »>.  Pullman  Palace-Car  v.  Goodwin,  19  Wend.  251;  Ouimit  i?.  Hen- 
Co.,  IC  Abb.  Pr.  (N.  s.)  352;  Palmeter  v.  Wag-  shaw,  35  Vt.  604 ;  Mattison  v.  New  York  etc. 
ner,  10  Alb.  L.  J.  149.  R.  Co.  19  Alb.  L.  J.  359 ;  s.  c.  8  Reporter,  440. 

*  Butcher  v.  London   etc.    R.   Co.,    16  C.  *  Midland  R.  Co.  v.  Bromley,  17  C.  B.  372; 

B.  13;  a.  c.  1  Jur.  (n.  s.)   427;   24  L.  J.  (C.  s.  c.  2  Jur.  (N.  s.)  140;  25  L.  J.  (C.  P.)  94.    See 

P.)   137;   Richards  v.  London    etc.  R.  Co.,  also  Penton  ?;.  Grand  Trunk  R.  Co.,  23  Up - 

7  C.  B.  839;  «.  c.  6  Eng.  Rail.  Cas.  49;  13  Jur.  per  Canada  Q.  B.  367. 

986 ;  18  L.  J.  (C.  P.)  251 ;  Minor  v.  Chicago  etc.  ^  Fisher  v.  Geddes,  15  La.  An.  14. 


DUTY  OF  CARRIER  TO  DELIVER.  533 


What  is  a  Good  Delivery. 

Tlie  question  as  to  wliat  constitutes  an  an-ival  at  the  destination  of  the  passen- 
ger, and  a  conclusion  of  his  journey,  is  one  of  fact,  dependent  for  its  solution 
upon  the  intention  of  the  parties  in  making  the  contract  for  carriage.  Whei'e  it 
is  not  otherwise  specially  agreed,  it  will  be  presumed  that  the  parties  had  in 
contemplation  a  conclusion  of  the  journey  in  accordance  with  the  established 
custom  and  usage  of  the  carrier.  Thus,  the  plaintiff  was  a  steerage-passenger 
from  Hamburgh  to  New  York.  On  arrival  at  the  latter  port,  the  vessel  terminated 
her  voyage  at  Hoboken,  opposite  the  city  of  New  York,  that  being  the  place 
where,  according  to  the  established  usage  and  custom  of  the  defendants,  all 
their  passengers  and  their  baggage  were  landed.  At  that  place  the  plaintiff's 
baggage  was  placed  upon  the  pier,  was  opened  by  the  plaintiff  for  the  examina- 
tion of  the  customs-officer,  and  was  then  taken  charge  of  by  the  subordinates 
or  employees  of  the  commissioners  of  emigration,  by  whom  it  was  transported 
to  the  emigrant-depot  in  the  city  of  New  York,  as  required  by  the  statute  regu- 
lating the  landing  of  emigrant  passengers  in  the  port  of  New  York.  The  coui't 
held  that  in  the  absence  of  proof  of  a  contract  on  the  part  of  the  defendants  to 
transport  the  plaintiff  and  his  baggage  to  the  city  of  New  York,  the  defendants 
were  discharged  from  any  further  obligation  as  to  the  baggage,  on  its  delivery  to 
the  commissioners  of  emigration  at  Hoboken.'  A  voyage  from  one  seaport  to 
another  is  not  concluded  at  the  quarantine  of  the  port  of  destination,  but  the 
carrier  may  be  excused  from  the  complete  fulfilment  of  his  contract  by  the  quar- 
antine regulations.  He  must,  however,  make  a  delivery  of  the  baggage,  either 
at  the  quarantine  or  at  the  port  of  destination,  to  relieve  himself  from  his 
liability  as  carrier.  In  a  case  where  it  appeared  that  the  plaintiff,  being  ill,  left 
the  vessel  at  quarantine,  his  baggage  remaining  on  board  the  vessel,  which 
reached  its  destination,  the  court  held  that  in  the  absence  of  any  offer  on  the 
defendants'  part  to  deliver  the  baggage  at  the  quarantine,  they  were  bound  to 
deliver  it  at  the  end  of  the  journey  when  called  for.-' 

Of  course,  a  delivery  of  the  baggage  to  the  passenger's  authorized  agent  is 
equivalent  to  a  delivery  to  the  passenger  himself.  The  question  of  agency,  in 
such  a  case,  is  a  question  of  fact.  This  will  be  illustrated  by  the  facts  of  the 
following  case :  By  virtue  of  an  agreement  between  a  railroad  and  a  steamboat 
company,  the  baggage-master  of  the  latter  always  entered  the  cars  before  their 
arrival  at  the  depot,  and  took  the  checks  of  through-passengers  by  the  boat, 
giving  them  in  exchange  checks  of  the  steamboat  company.  It  was  a  contro- 
verted question  whether  he  was  the  plaintiff's  agent  to  receive  the  baggage,  or 
the  railroad  company's  agent  by  agreement  with  the  steamboat  company  to 
take  charge  of  the  baggage  and  deliver  it  at  the  boat ;  thei'efore  a  charge  which 
in  effect  assumed  that  he  was  the  plaintiff's  agent  was  held  to  be  an  invasion 
of  the  province  of  the  jury.' 

The  contract  of  the  carrier  is  to  deliver  at  the  end  of  the  journey,  and  if  the 
baggage  of  a  passenger  on  a  railroad  is  carried  past  his  destination  to  another 
fetation  of  the  road,  and  there  stored  in  the  company's  depot  baggage-room,  the 
liability  of  the  company  as  a  common  carrier  is  not  thereby  ended.  The  com- 
pany will  be  liable  for  the  theft  of  the  goods  while  so  stored.* 

1  Klein  v.  Hamburg  American  Packet  '  Mobile  etc.  R.  Co.  v.  Hopkins,  41  Ala- 
Co.,  .3  Daly,  390.  486. 

2  Gilhooly  v.  New  York  etc.  Steam  Nav.  <  Toledo  etc.  R.  Co.  v.  Hammond,  33  Ind. 
Co.   1  Daly,  197.  379. 


534  passenger's  baggage. 


Notes. 


The  effect  of  a  delivery  of  the  baggage  to  the  passenger  is  to  end  the  carrier's 
extraordinary  liability ;  and  therefore  a  redelivery  of  the  baggage  to  his  agent, 
not  for  carriage,  but  for  safe-keeping,  for  the  convenience  of  the  passenger,  will 
render  the  carrier  responsible  only  as  a  gratuitous  bailee.^  The  burden  of  show- 
ing that  the  baggage  was  delivered  to  the  passenger,  it  appearing  that  it  was 
once  in  the  custody  of  the  carrier  for  carriage,  is  upon  the  carrier.' 

§  22.  Duty  of  Carrier  to  afford  Facilities  for  Delivery  and  Storage  of 
Baggage  at  Destination.  —  The  duty  of  the  carrier  to  deliver  his  baggage  to 
the  passenger  necessarily  involves  the  duty  to  extend  to  the  passenger  facilities 
for  receiving  it.  It  should  be  placed  where  he  can  get  at  it.  In  the  case  of  a 
railway  company,  the  platform  of  the  station  is  the  usual  and  proper  place  to 
keep  it  until  the  owner,  in  the  exercise  of  due  diligence,  can  receive  it.^  There 
should  be  a  baggage-master  in  attendance  to  take  care  of  it  and  receive  the 
checks  and  deliver  it.*  The  common  carrier  is  under  obligations,  too,  to  care 
for  the  baggage  for  a  reasonable  time  after  arrival,  to  enable  the  passenger 
to  take  possession  of  it.^ 

§  23.  Duty  of  the  Passenger  to  remove  his  Baggage  on  arrival  at  Destina- 
tion.—  On  the  other  hand,  there  is  a  reciprocal  duty  resting  upon  the  passenger 
to  remove  his  baggage  within  a  reasonable  time  after  reaching  his  destination, 
and  thus  relieve  the  carrier  from  further  care  and  responsibility  concerning 
it.  After  an  opportunity  to  do  this  has  been  afforded  him,  a  failure  on  his  part 
to  remove  it  within  a  reasonable  time  will  have  the  effect  of  relieving  the  carrier 
from  his  extraordinary  liability.  He  becomes  liable  then  as  a  warehouseman  or 
bailee  for  hire.^  But  the  new  relation  of  warehouseman  does  not  arise  until  it 
appears  that  the  baggage  was  stored  in  a  safe  and  secure  warehouse.  If  it  is 
placed  in  an  insecure  room,  and  stolen,  the  carrier  will  be  liable  as  a  common 
carrier  and  uot  as  a  warehouseman.''  Thus,  the  baggage  of  the  plaintiff  was  not 
claimed  upon  arrival  at  its  destination,  and,  after  remaining  several  hours  on  the 


'  Minor  v.  Chicago  etc.  R.  Co.,  19  Wis.  40.  Bartholomew  v.  St.  Louis  etc.  R.  Co.,  53  111. 

*  Kent  V.  Midland  R.  Co.,  L.  R.  10  Q.  B.  1;  227;  Burnell  v.  New  York  etc.  R.  Co.,  45  N. 
s.  c.  44  L.  J.  (Q.  B.)  18;  31  L.  T.  (N.  s.)  430;  Y.  184;  Chicago  etc.  R.  Co.  v.  Fairclough,  52 
23  Week.  Rep.  25.  111.  106;  Mattison  v.  New  York  etc.  R.  Co.,  57 

3  Patscheider  v.  Great  Western  R.  Co.,  3  N.   Y.  552;  Mote  v.  Chicago  etc.   R.  Co.,  27 

Exch.  Div.  153;  Cary  v.  Cleveland  etc.  R.  Iowa,  22;  Ross  V.Missouri  etc.  R.  Co.,  4  Mo. 

Co.,  29  Barb.  35.  App.  583;  Penton  v.  Grand  Trunk  R.  Co.,  2t4 

*  Dininny  i;.  New  York  etc.  R.  Co.,  49  N.  Upper  Canada  Q.  B.  367;  Patscheider  i'. 
Y.  546.  Great  Western  R.  Co.,  3  Exch.  Div.  153.    A 

5  Nevins  v.  Bay  State  Steamboat  Co.,  4  loose   dictum   of  the   New    York    Supreme 

Bosw.  225;  Gilhooly  v.  New  York  etc.  Steam  Court  would  seem  to  warrant  the  view  that 

Nav.  Co.,  1  Daly,  197;  Patscheider  v.  Great  a  carrier  is  liable  for  unclaimed  baggage 

Western  R.  Co.,  3  Exch.  Div.  153;  Cary  v.  merely  as  gratuitous  bailee.    Jones  t>.  Nor- 

Cleveland  etc.  R.  Co.,  29  Barb.  35;  Curtis  v.  wich  etc.  Transp.  Co.,  50  Barb.  193.    Such  a 

Delaware  etc.  R.  Co.,  74  N.  Y.  116.  doctrine,  however,  is  entirely  unsupported 

«  Dininny  v.  New  York  etc.  R.  Co.,  49  N.  by  authority. 

Y.  546;  Chicago  etc.  R.  Co.  v.  Boyce,  73  111.  ■  Bartholomew  v.  St.  Louis  etc.  R.  Co.,  53 

510;  Roth  V.  Buffalo  etc.  R.  Co.,  34  N.  Y.548;  111.  227;  Chicago  etc.  R.  Co.  v.  Fairclough, 

Van  Horn  v.    Kermit,  4  E.   D.  Smith,  454;  52  111.106;  Mattison  r.  New  York  etc.  R.  Co., 

Louisville  etc.  R.  Co.  v.  Mahan,  8  Bush,  184;  57  N.  Y.  552;  Mote  v.  Chicago  etc.  R.  Co.,  27 

Holdridge  v.  Utica  etc.  R.  Co.,  56  Barb.  191;  Iowa,  22. 


DUTY  OF  CARRIER  TO  DELIVER.  535 


Duty  of  Passenger  to  remove. 

platform,  was  removed  by  the  station-agent  into  a  room,  which  was  the  only 
place  for  storing  baggage  connected  with  the  station,  but  which  was  not  secure 
for  the  lieeping  of  such  property,  the  door  being  so  imperfectly  fastened  as  to 
■constitute  no  bar  to  any  one  desiring  to  enter,  and  the  building  being  without  a 
watchman.  The  room  having  been  entered  during  the  night,  and  the  trunk 
broken  open  and  rifled,  the  company  was  held  liable  for  the  loss.^ 

A  bailee  for  hire,  which  is  the  relation  which  the  carrier  bears  to  the  traveller 
under  such  circumstances,  is  bound  to  exercise,  for  the  safe-keeping  of  the 
goods  in  his  charge,  such  due  diligence  and  care  as  a  prudent  man,  in  contem- 
plation of  all  the  circumstances,  would  exercise  towards  his  own  property.  He 
is  liable  for  all  losses  in  consequence  of  his  negligence  or  that  of  his  servants. 
A  failure  on  the  part  of  the  carrier  to  deliver  the  baggage  upon  demand,  is  evi- 
dence of  negligence,  and  makes  a  primci  facie  case  of  liability  against  him.  The 
burden  of  accounting  for  the  default  lies  with  the  carrier.  Thus,  the  plaintiff 
purchased  a  ticket  of  a  railroad  company  for  New  York  City  over  their  road  and 
a  connecting  line,  and  had  his  baggage  checked  through  to  that  city.  Upon  his 
arrival  there,  he  gave  his  check  to  an  expressman,  with  instructions  to  get  his 
baggage  from  the  depot.  The  expressman  never  called  for  the  trunk,  and  when 
the  plaintiff,  two  days  afterwards,  demanded  his  trunk,  it  could  not  be  found. 
The  defendants,  in  pursuance  of  an  agreement  with  the  connecting  line,  had 
transferred  the  baggage  to  the  latter  at  Albany,  and  it  had  been  conveyed  by 
them  to  New  York  and  deposited  in  their  depot.  The  court  held  that  in  the 
absence  of  any  proof  by  the  defendants,  accounting  for  their  failure  to  deliver 
the  baggage,  the  plaintiff  was  entitled  to  recover  for  its  loss.^ 

In  these  cases,  what  is  a  reasonable  time  for  the  removal  of  baggage  must 
necessarily  depend  upon  the  circumstances  of  each  individual  case,  and  is  fre- 
quently, to  a  great  extent,  a  question  of  fact  for  the  jury;  but  where  the  facts 
are  undisputed,  it  is  said  to  be  a  question  of  law,  to  be  determined  by  the  court.* 
Where  a  traveller,  upon  reaching  the  end  of  one  of  the  stages  of  her  journey, 
not  wishing  to  be  troubled  with  her  trunk,  intentionally  abandoned  it  to  the 
care  of  the  carrier,  without  inquiry  about  it,  presentation  of  her  check,  or  expla- 
nation, special  arrangement,  or  notice,  for  about  seventeen  hours,  while  she  went 
about  three  miles  to  visit  a  friend,  and  during  that  period  the  trunk  with  its 
contents  was  accidentally,  and  without  negligence  on  the  part  of  the  carrier, 
destroyed  by  fire  in  a  baggage-room  on  the  dock,  into  which  it  had  been  removed 
by  the  carrier's  employees,  the  court  held  that  the  carrier  was  not  liable  for  the 
loss.*  In  another  instance,  a  vessel  arrived  in  port  on  Monday;  on  Tuesday  the 
master  and  mate  requested  the  passenger  to  remove  his  baggage,  which  he 
failed  to  do.  Upon  the  passenger  demanding  his  baggage  the  following  Wednes- 
<lay,  it  was  found  to  be  missing.  The  court  held  that  the  owners  were  relieved 
from  their  strict  liability  as  carriers.*  In  a  case  previously  noticed,  the  passenger 
was  obliged  to  quit  the  vessel  at  quarantine,  and  his  baggage  went  on  to  New 
York  City,  —  his  destination.    A  delay  of  several  days  to  demand  the  baggage 

1  Mote  V.  Chicago  etc.  R.  Co.,  27  Iowa,  22.  »  Chicago  etc.  R.  Co.  v.  Boyce,  73  111.  510; 

2  Buvnell  v.  New  York  etc.  K.  Co.,  45  N.  X,        Roth  v.  Buffalo  etc.  R.  Co.,  U  N.  V.  548. 

184.    See  also  Chicago  etc.  H.  Co.  v.  Fair-  ■•  Jones  v.  Norwich  etc.   Transp.  Co.,  50 

clough,  r>2  111.  106;  Bartholomew  v.'St.  Louis        Barb.  19.'}. 

etc,.  11.  (Jo.,  53  111.  227.  *  Van  Horn  v.  Kertnit,  4  E.  D.  Smith,  453. 


536  passenger's  baggage. 


Notes. 


was  considered  insufficient  to  release  the  owners  of  the  vessel  from  liability 
as  carriers.* 

Other  courts  are  less  liberal  towards  the  passenger.  A  Kentucky  case  is 
authority  for  the  rule  that  a  passenger  arriving  at  his  destination  at  half-past 
eight  o'clock,  p.  m.,  has  "no  right  to  prolong  the  strict  and  rigid  liability  of  the 
company  as  a  common  carrier  by  leaving  his  baggage  in  the  possession  of  its 
agent  during  the  night."  ^  In  a  Canadian  case,  it  appeared  that  the  plaintiff 
arrived  at  his  destination  at  three  o'clock  in  the  afternoon,  and  having  had  his 
trunks  put  into  the  baggage-room,  left  the  station  in  an  omnibus.  In  the  evening 
about  eight  o'clock  he  sent  his  checks  for  the  trunks,  but  one  of  them  had  dis- 
appeared, and  the  evidence  went  to  show  that  it  had  been  stolen.  It  was  held 
that  the  defendants  were  not  responsible  for  this  loss ;  that  their  duty  as  com- 
mon carriers  ended  when  the  trunk  was  placed  on  the  platform  and  the  plaintiff 
had  had  a  reasonable  time  to  remove  it,  as  he  clearly  had  here.* 

A  statute  forbidding  the  doing  of  any  secular  work  or  travelling  on  the  Lord's 
Day  wiU  not  excuse  a  passenger  who  arrives  at  his  destination  on  Sunday  morn- 
ing from  demanding  and  receiving  his  baggage.* 

Circumstances  will  sometimes  excuse  a  failure  of  the  passenger  to  claim  and 
remove  his  baggage.  Where  the  passenger  was  a  lame  boy,  and  unable  to  take 
charge  of  his  baggage  personally,  and  made  an  arrangement  with  the  agent  of 
the  carrier  by  which  it  was  to  remain  in  his  hands  until  sent  for,  and  while  so 
in  his  hands  it  was  lost,  the  court  held  the  carrier  liable  for  the  loss.* 

§24.  Delivery  of  Baerera^e  upon  Forged  Order,  —  As  before  stated,  the 
responsibility  of  a  carrier  of  passengers  for  the  safety  of  baggage  is  absolute, 
except  as  against  the  act  of  God  and  the  public  enemy.  With  these  exceptions, 
nothing  short  of  a  redelivery  to  the  passenger  or  his  authorized  agent,  or  default 
in  demanding  it,  will  relieve  him  from  this  responsibility.  Therefore  a  delivery 
of  a  passenger's  baggage  to  a  person  not  authorized  to  receive  it,  upon  a  forged 
order,  whereby  it  is  lost  to  the  owner,  will  not  relieve  the  carrier  of  liability, 
though  made  in  good  faith.* 

§  25.  Measure  ol  Damages  in  Action  for  Loss  of  Baggage.  —  In  an  action  by 
a  passenger  against  a  carrier  for  the  loss  of  his  baggage,  the  proper  measure  of 
the  plaintiff's  recovery  is  the  fair  market  value  of  his  property.'  This  must  be 
ascertained  by  the  jury,  and  based  upon  some  evidence.  Thus,  where  the  prop- 
erty lost  was  some  valuable  laces,  and  it  appeared  that  they  had  been  purchased 
by  no  one  within  living  memory,  but  were  inherited  or  received  by  gift,  it  was 

1  Gilhooly  v.  New  York  etc.  Steam  Kav.  »  Powell  v.  Myers,  26  Wend.  591;  Mattison 

Co.,  1  Daly,  197.  v.  New  York  etc.  R.  Co.,  57  N.  Y.  552;  s.  c. 

*  Louisville  etc.  E.  Co.  v.  Mahan,  8  Bush,  19  AJb.  L.  J.  359;   8  Reporter,  440;   Bloss- 

184.    Compare  Cary  v.  Cleveland  etc.  R.  Co.,  man  v.  Hooper,   16  La.  An.  160;  Morris  v. 

29  Barb.  35.  Third  Avenue  R.  Co.,  1  Daly,  202. 

»  Penton  v.  Grand  Trunk  R.  Co.,  28  Upper  ■  Fralofif  ii.  New  York  etc.  R.  Co.,  lOBlatchf. 

Canada  Q.  B.  367.  16 ;  Illinois  etc.  R.  Co.  v.  Copeland,  24  III.  332 ; 

<  Jones  V.  Norwich  etc.  Transp.  Co.,  60  Anderson  i;.  North-Eastern  R.  Co., 4  L.T.  (N. 

Barb.  193.  8.)  216;  s.  c.  9  Week.  Rep.  519;  New  Orleans 

'  Curtis  V.  Avon  etc.  R.  Co.,  49  Barb.  148.  etc.  R.  Co.  v.  Moore,  40  Miss.  39. 
See  Harlow  v.  Fitchburg  R.  Co.,  8  Gray,  237. 


MEASURE    OF    DAMAGES    FOR    LOSS    OF    BAGGAGE.  537 


Procedure  —  Parties  to  Actions. 

held,  nevertheless,  that  their  value  must  be  ascertained  by  a  money  standard 
based  on  evidence,  and  could  not  be  assessed  upon  conjecture,  and  that  in  the 
absence  of  such  evidence  nominal  damages  only  could  be  given. >  But  in  an  early 
case  in  Illinois,  where  the  plaintiff,  though  permitted  to  prove  the  loss  and  con- 
tents of  his  baggage,  was  not  allowed  to  testify  as  to  the  value,  the  court  held 
that  the  jury  might  assess  his  damages  from  their  own  knowledge  of  the  values 
of  such  articles,  when  they  have  heard  them  described.^ 

The  plaintiff  cannot  recover  as  damages  for  the  loss  of  his  baggage  the  expense 
incurred  in  making  search  for  it ;  ^  nor  the  amount  spent  in  purchasing  clothing 
and  other  articles  of  immediate  necessity,  in  consequence  of  the  loss  of  his  bag- 
gage.* Nor  can  damages  be  recovered  to  compensate  the  passenger  for  a  loss  of 
profits  which  he  expected  in  any  way  to  derive  from  the  contents  of  his  trunk^ 
and  for  two  reasons :  (1)  such  articles  are  not  baggage ;  *  and  (2)  such  profits 
constitute  speculative  or  remote  damages.* 

The  question  as  to  whether  the  plaintiff  can  recover  interest  on  the  amount  of 
damages  up  to  the  date  of  judgment  is  one  which  belongs  properly  to  a  work  on 
damages,  and  a  discussion  of  the  principles  governing  interest  on  unliquidated 
damages  is  apart  from  our  purpose  here.  It  is  sufHcient  to  say  that  the  rule 
which  formerly  prohibited  the  recovery  of  such  interest  has  been  very  much 
modified  by  the  later  decisions ;  and  in  Iowa  it  has  been  held  that,  in  an  action 
for  the  loss  of  baggage,  the  measure  of  damages  properly  included  interest  on 
the  value  of  the  property  from  the  date  of  the  loss  to  the  recovery.' 

There  is  a  statute  in  this  State  which  provides,  "That  for  every  day's  deten- 
tion to  travellers  in  consequence  of  damage  as  befoi'e  described,  and  necessary 
delay  in  suit  for  same,  said  companies,  owners,  or  agents  shall  pay  to  each 
person  so  delayed  a  sum  of  not  less  than  three  dollars,  which  amount  shall  be 
added  to  the  judgment  for  damages  to  property,  should  the  action  be  sustained."  * 
This  was  held  to  apply  to  the  delay  caused  by  damage  or  injury  to  the  baggage 
only,  and  not  to  that  consequent  upon  a  detention  of  the  same,  or  a  failure  to 
deliver  it.^ 

§  26.  Procediire  —  Parties  to  Action.  —  A  father  is  the  proper  plaintiff  in  an 
action  for  the  loss  of  the  baggage  of  his  minor  child.^"  In  Indiana,  however,  it 
was  held  that  a  minor  might  himself  maintain  an  action,  by  his  next  friend,  for 
the  loss  of  his  baggage  containing  clothing  or  other  property  given  to  him  by 
his  parents  or  others." 

As  to  the  baggage  of  a  married  woman,  containing  her  paraphernalia,  the  rule 
at  common  law  would  seem  to  be  that  the  husband  was  the  proper  plaintiff  in 
an  action  for  its  loss,  because  at  common  law  the  property  in  his  wife's  parapher- 


1  Fraloff ».  New  York  etc.  R.  Oo.,  lOBlatchf.  '  Mote  v.  Chicago  etc.  R.  Co.,  27  Iowa,  22. 

18,  8  Acts  13th  Gen.  Ass.  Iowa,  chap.  166,  § 

3  Illinois  etc.  R.  Co.  v.  Copeland,24  111.  332.  2;  Amended  Code  1873,  §  2183. 

»  Mississippi  etc.  R.  Co.  v.  Kennedy,  41  »  Anderson  v.  Toledo  etc.  R.  Co.,  32  Iowa, 

Miss.  671.  86. 

<  New  Orleans  etc.  R.  Co.  v.  Moore,  40  Miss.  '"  Baltimore  Steam  Packet  Co.  v.  Smith,  2a 

39.                                           6  Supra,  §  2.  Md.  402;  Grant  v.  Newton,  1  E.  D.  Smith,  05; 

«  Michigan  etc.  R.  Co.  v.  Oehm,  56  111.  293;  Sloman  v.  Great  Western  K.  Co.,  67  N.  Y.  208. 

Brock  V.  Gale,  14  Fla.  523.  "  Perkins  v.  Wright,  37  Ind.  29. 


538  passenger's  baggage. 


Notes. 


oalia  was  vested  in  him.i  But  in  New  York  the  wife's  paraphernalia  is  made  a 
legal  separate  estate  by  statute,  and  she  is  authorized  to  sue  and  be  sued  for 
contracts  and  injuries  concerning  it ;  '^  and  therefore  a  suit  for  the  loss  of  her 
baggage  is  properly  brought  in  her  own  name.^ 

In  the  same  State  it  has  been  held  that  the  right  of  action  against  a  common 
carrier  to  recover  the  value  of  property  intrusted  to  him  is  assignable.  In  such 
A  case  it  is  proper  for  the  assignee  to  sue  in  his  own  name.* 

§27.  Pleading  —  Form  of  Action.  —  The  action  for  the  recovery  of  damages 
for  the  loss  of  baggage  may  be  brought  either  in  the  form  of  an  action  ex  con- 
tractu for  a  breach  of  the  contract  of  carriage,  or  in  the  form  of  an  action  ex 
delicto  for  the  conversion  of  the  property.*  But  whatever  form  is  adopted,  once 
selected,  it  carries  with  it  all  the  incidents  to  the  action.  Thus,  in  an  English 
case,  where  the  declaration  was  in  form  ex  contractu,  a  statute  depriving  the 
plaintiff  of  costs  in  an  action  founded  on  contract,  in  the  event  of  recovering 
less  than  £20,^  was  held  to  apply  and  prevent  the  recovery  of  costs,  though  the 
•complaint  might  have  been  framed  as  sounding  in  tort.'  And  in  Pennsylvania, 
where  the  process  of  foreign  attachment  will  not  lie  upon  a  demand  founded  in 
tort,  the  court  held  that  it  would  not  lie  against  common  carriers  to  recover  for  the 
loss  of  a  trunk,  where  the  form  of  the  declaration  is  in  tort  and  not  ex  contractu.^ 

§  28.  Competency  of  Plaintiff  to  show  the  Contents  of  Baggage.  —  Before 
the  changes  effected  by  the  codes  of  procedure  which  have  been  enacted  in 
almost  aU  of  the  States,  the  question  of  the  competency  of  the  plaintiff  as  a 
witness  to  show  the  contents  of  his  baggage  was  one  of  considerable  importance, 
and  there  are  many  adjudications  upon  the  subject.  As  is  well  known,  at  com- 
mon law  a  party  was  not  permitted  to  testify  in  his  own  behalf ;  but  in  the  case  of 
an  action  for  the  loss  of  baggage,  it  is  frequently  impossible  for  any  other  per- 
son to  prove  the  contents  of  it,  and  hence  it  was  repeatedly  held  that  the  plaintiff 
was  a  competent  witness  in  that  respect  ex  necessitate  rei.^  This  rule  was  ex- 
tended, not  only  to  an  enumeration  of  the  articles,  but  to  the  proof  of  their 
value. 1"  But  in  Illinois  the  court  confined  the  plaintiff 's  testimony  to  an  enumera- 
tion of  the  articles  contained  in  his  baggage." 

>  McCormick  v.  Penn.  etc.  R.  Co.,  49  N.  Y.  «  Porter  r.  Hildebrand,  14  Pa.  St.  129. 

304.  '  Herman  v.  Drinkwater,  1  Me.  27;  White- 

2  Acts  N.  Y.  1860,  chap.  40;  Amended  Acts  sell  r.  Crane,  8  Watts  &  S.  369;  Illinois 
N.  Y.1862,  chap.  170;  4  TST.  Y.  Stats,  at  Large  etc.  R.  Co.  v.  Copeland,  24  m.  332;  Dibble 
(2d  ed.),  515-517:  3  Rev.  Stats.  N.  Y.,  159-162.  v.  Brown,   12  Ga.   217;    Doyle    v.    Kiser,   6 

3  Rawson  V.  Pennsylvania  R.  Co.,  48  N.  Y.  Ind.  242;  Garvey  v.  Camden  etc.  R.  Co.,  1 
^12;  ».  c.  2  Abb.  Pr.  (N.  S.)  220;  Stoneman  v.  Hilt.  280;  Bingham  v.  Rogers,  6  Watts  &  S. 
Erie  R.  Co.,  52  N.  Y.  429;  Steamboat  State  of  495;  Cadwallader  v.  Grand  Trunk  R.  Co.,  9 
Kuw  York,  7  Ben.  450.  Lower  Canada  Rep.  169;  Macdougall  v.  Tor- 

«  Merrill  v.  Grinnell,  30  N.  Y.  594;  Free-  ranee,  4  Lower  Canada  Jur.  132.    But  see 

man  v.  Newton,  3  E.  D.  Smith,  246.  David  v.  Moore,  2  Watts  &  S.  230;  Snow  v. 

'=>  Weed  V.  Saratoga  etc.  R.  Co.,  19  Wend.  Eastern  R.  Co.,  12  Met.  44. 

434;  Porter  v.  Hildebrand,  14  Pa.   St.  129;  w  WhiteseU  v.  Crane,  supra;  Bingham  r. 

Bayliss  v.  Lintott,  L.  R.  8  C.  P.  345;  s.  c.  42  Rogers,  supra;  Mad  River  etc.  R.  Co.  v.  Ful- 

L.  J.  (C.  P.)  119 ;  28  L.  T.  (n.  s.)  6G6.  ton,  20  Ohio,  318. 

«  CountyCourts  Act,30&31Vict.,c.  142,§5.  "  Illinois  etc.  R.  Co.  v.  Copeland,  24  111. 

'  Bayliss  v.  Lintott,  L.  R.  8  C.  P.  345;  s.  c.  332;  Illinois  etc.  R.  Co.  v.  Taylor,  24  lU.  323; 

42  L.  J.  (C.  P.)  119;  28  L.  T.  (N.  S.)  666.  Davis  v.  Michigan  etc.  R.  Co.,  22  111.  278. 


PROCEDURE.  539 


Burden  of  Proof — Res  Gestae. 


On  the  same  principle,  the  rule  which  incapacitated  the  husband  or  wife  as  a  wit- 
ness for  each  other  was  relaxed  in  these  cases. ^  But  these  relaxations  of  the 
strict  rule  of  the  common  law  were  not  favored  by  the  courts,  and  it  was  only  in 
those  instances  where  no  other  evidence  was  attainable  that  they  were  permitted.'' 
This  stringency  in  enforcing  the  rule  was  extended  to  those  cases  where  an 
assignment  of  the  claim  had  been  made  and  it  appeared  that  the  assignment 
was  colorable  merely,  made  for  the  purpose  of  enabling  the  owner  of  the 
baggage  to  testify  to  its  contents,  and  that  the  action  was  prosecuted  really 
for  his  benefit.  The  testimony  of  such  an  assignor  was  admitted  only  under  the 
same  restrictions  which  would  have  been  imposed  had  he  been  the  plaintiff.' 

So  great  was  the  inconvenience  and  injustice  of  the  common-law  rule,  even  as 
relaxed  in  practice,  that  in  several  of  the  States  statutes  were  enacted  enabling 
the  plaintiff  to  testify  in  such  cases.* 

§  29.  Burden  of  Proof.  —  The  contract  of  the  carrier  is,  to  carry  the  baggage, 
and  at  the  end  of  the  journey  to  deliver  it  safely  into  the  hands  of  the  passenger. 
It  is  therefore  enough  for  the  passenger,  in  an  action  for  its  loss,  to  show  delivery 
to  the  carrier,  and  a  failure  to  redeliver  at  the  end  of  the  journey.  The  burden 
■of  showing  that  the  loss  occurred  under  circumstances  which  will  excuse  the 
carrier  for  default  rests  upon  the  latter.*  But  such  is  not  the  rule  where  the  car- 
rier, from  the  circumstances  of  the  case,  is  liable  only  as  a  gratuitous  bailee.  In 
such  a  case  the  plaintiff  must  prove  negligence.  Thus,  the  defendant,  a  railroad 
company,  failed  to  deliver  to  a  connecting  line  a  passenger's  valise  containing 
merchandise  only.  Such  a  failure  was  not  evidence  to  charge  the  defendant  with 
negligence,  who  had  sold  the  ticket  and  checked  the  baggage  over  both  lines.  ® 

§  30.  Res  Gestae.  —  An  agent  of  a  railroad  corporation,  having  charge  of  a 
<Jepot,  is  a  proper  person  to  inquire  of  respecting  lost  baggage,  and  his 
answer  is  part  of  the  evidence  of  the  loss,  and  admissible  as  res  gestae.'' 

»  McGill  V.  Rowand,  3  Pa.  St.  451;  Smith  v.  67;  Van  Horn  v.  Kermit,  4  E.  D.  Smith,  453; 

Boston  etc.  R.  R.,  44  N.  H.  325.  Baltimore  Steam  Packet  Co.  v.  Smith,  23  Md. 

«  Dibble  v.  Brown,  12  Ga.  217.  402;  Burnell  v.  New  York  etc.  R.  Co.,45  N.  Y. 

s  Bell  V.  Drew,  4  E.  D.  Smith,  59.  184;  Garvey  v.  Camden  etc.  R.  Co.,  1  HUt. 

*  Stats.  Mass.  1851,  chap.  147,  §  5;  Harlow  280;  Steamboat  State  of  New  York,  7  Ben.  450. 

V.  Fitchburg  R  Co.,  8  Gray,  237;  Rev.  Stat.  «  Stimson  r.  Connecticut  River  R.  Co.,  98 

Mo.  1855,  p.  4:}5,  §  45;  Nolan  v.  Ohio  etc.  R.  Mass.  83.    But  see  Steers  v.  Liverpool  etc. 

€o.,  39  Mo.  114;  Laws  N.  Y.  1850,  p.  232;   2  Steam  Co.,  57  N.  Y.  1. 

Rev.  Stats.  N.  Y.  540,  §  54.  ?  Curtis  v.  Avon  etc.  R.  Co.,  49  Barb.  148; 

'  Camden  etc.  R.  Co.  v.  Baldauf,  16  Pa.  St.  Morse  v.  Connecticut  etc.  R.  Co.,  6  Gray,  450. 


CHAPTEE    XVII. 

REMEDIES,    PROCEDURE,    AND   DAMAGES. 


Leading  Case  :    McCall  v.  Forsyth.  —  Action  may  be  ex  contractu  or  ex  delicto* 

Notes:     §  l.  Jurisdiction  of  suits  against  carriers. 

2.  Carrier  may  be  sued  in  contract  or  tort. 

3.  Form  of  the  action  —  Trespass  or  case. 

4.  Joint  and  several  liability. 

5.  Difference  in  measure   of  damages  between  actions  ex  con- 

tractu and  actions  ez  delicto. 

6.  Abatement  and  revival. 

7.  Wbo  may  sue. 

(1.)  Master  or  parent  for  loss  of  service  of  servant  or  child. 

(2.)  Foreign  administrator. 

(3.)  Husband  for  wife. 

(4.)  Wife  in  her  own  name. 

(5.)  Assignee  of  the  cause  of  action. 

8.  Counts  in  the  declaration. 

9.  Particularity  of  statement  in  the  declaration  or  complaint. 

(1.)  in  actions  ex  delicto . 
(2.)  In  actions  ex  contractu. 

10.  Allegations  under  statutes  giving  a  right  of  action  where  the 

damages  resulted  in  death. 

11.  Allegation  of  the  carrier's  duty. 

12.  Allegation  of  damages. 

13.  Whether  the  plaintiff  must  deny  contributory  negligence. 

14.  Particularity  of  statement  in  the  defensive  pleadings. 

15.  Variance  between  allegation  and  proof. 

16.  Points  of  evidence. 

(1.)  Presumptions. 

(2.)  Want  of  skill  in  the  carrier's  servant. 

(3.)  Bes  gestae. 

(a.)  Declarations  of  the  plaintiff. 

(6.)  Conduct  of  the  other  passengers. 

(c.)   Conduct  of  the  defendant. 

(d.)  Statements  of  the  defendant's  servants. 
(4.)  Testimony  of  expert  witnesses. 
(5.)  Opinions  of  non-expert  witnesses. 
(6.)  Other  matters. 

17.  Province  of  court  and  jury. 

18.  Demurrer  to  evidence. 

19.  All  damages,  present  and  prospective,  may  be  recovered. 

20.  Permanent  injuries — Life-tables. 

21.  Damages  should  be  obvious,  and  not  conjectural  or  speculative. 
(540) 


ACTION    EX    CONTRACTU    OR    EX    DELICTO.  541 


Supreme  Court  of  Pennsylvania. 

Notes:     §  22.  The  same  rules  as  to  the  measure  of  damages  apply  to  corpo- 
rations as  to  individuals. 

23.  Elements  of  damage. 

24.  Continued  —  Wealth  of  defendant  —  Circumstances  of  plain- 

tiff —  Disfigurement  of  person  —  Character  of  plaintiff  — 
Expense  of  litigation  —  "Value  of  gratuitous  nursing. 

25.  Continued  —  Damages  which  may  be  recovered  by  husband 

and  wife  jointly  suing  —  Recovery  by  father  for  injury  to 
child. 

26.  Mitigation  of  damages. 

27.  Exemplary  damages. 

(1.)  May  be  awarded,  when. 

(2.)  When  corporations  are  liable. 

(3.)  Questions  of  law  and  questions  of  fact. 

28.  Excessive  damages  —  When  appellate  courts  will  reverse  judg- 

ments on  account  of. 

29.  Illustrations. 

(1.)  For  wrongfully  ejecting  passenger. 

(2.)  For  removal  of  a  passenger  from  a  train  at  a  place  not 

a  regular  station. 
(3.)  For  refusal  to   admit  passenger  to  a  car  —  Colored 

person. 
(4.)  For  assault  upon  passenger  by  carrier's  servants. 
(5.)  For  carrying  passenger  beyond  his  destination. 
(6.)  For  injury  to  passenger  in  railroad  accident. 
(7.)  For  injury  to  passenger  getting  on  or  off  a  railroad  train. 
(8.)  For  injury  to  passenger  by  accident  to  stage-coach. 


ACTION  MAY  BE  EX  CONTRACTU  OR  EX  DELICTO. 

McCall  V.  Forsyth.* 

Supreme  Court  of  Pennsylvania,  1842. 

Hon.  John  Bannister  Gibson,  Chief  Justice. 
*'     Charles  Huston, 
"     John  Kennedy, 
**     Thomas  Sergeant, 
«'     MoLTON  C.  Rogers, 


-  Justices 


For  the  injury  done  to  a  passenger  by  the  negligence  of  the  carrier,  he  may  sue  either  In 
assumpsit  or  in  case;  if  in  the  former,  in  order  to  recover  he  must  prove  the  liability  of 
all  the  parties  sued ;  if  in  the  latter,  he  may  recover  against  those  of  the  defendants 
who  are  liable. 

Error  to  the  District  Court  of   Allegheny  County.     John  Forsyth 
brought  this  action  on  tlie  case  against  WilHatn  McCall,  Abraham  Hor- 

*  Reported,  4  Watts  &  S.  179. 


542  REMEDIES ,    PKOCEDURE,    AND    DAMAGES. 

McCall  V.  Forsyth. 

bach,  Samuel  Reishei*,  James  Spratt,  and  Samuel  Elder,  to  recover 
damages  for  an  injury  done  to  him  by  the  upsetting  of  the  defendants* 
stage.  McCall  and  Horbach  were  alone  served  with  process,  and  for 
them  alone  was  there  any  appearance  or  plea. 

The  defendants  took  the  ground  that  the  plaintiff  could  not  recover 
unless  he  proved  that  all  the  defendants  sued  were  partners,  or  part- 
owners  of  the  stage  in  which  the  plaintiff  received  the  injury  alleged  in 
his  declaration. 

Grier,  President,  instructed  the  jury  that  the  plaintiff's  position  was 
not  untenable ;  and  the  jury  rendered  a  verdict  for  the  plaintiff  for 
$500  damages. 

Dunlop,  for  plaintiff  in  error.  —  The  point  raised  has  been  differently^ 
decided  in  England.  In  the  Common  Pleas,  ^  it  was  held  to  be  an 
action  ex  contracUi;  but  this  was  reversed  in  the  King's  Bench  and 
Exchequer. 2  In  Pennsylvania,  the  doctrine  of  the  Common  Pleas  has 
been  recognized  and  expressly  sanctioned. ^  The  leading  cases  on  the 
subject  are  found  in  2  Show.  478  ;  3  Lev.  258. 

It  was  originally  called  an  action  of  assumpsit,  though  in  form  a  suit 
on  the  custom  of  the  realm,  and  it  was  held  could  not  be  joined  with 
trover.'*  Lord  Ellenborough  required  parties  to  be  joined  in  an  action 
of  deceit  in  a  warranty  by  two.^  It  is  also  worthy  of  consideration 
that  if  the  doctrine  of  the  court  below  be  sustained,  it  leads  to  the 
result  that  the  whole  burden  of  the  misfortune  may  be  thrown  upon 
one  of  the  owners,  without  the  right  to  resort  to  the  others  for  con- 
tribution.^ 

Flndlay,  contra.  —  The  principle  seems  to  be  clearly  recognized  that 
the  party  may  elect  to  sue  on  the  contract,  or  charge  the  defend- 
ants in  an  action  on  the  case  sounding  in  tort ;  and  there  is  no  reason 
why  he  should  be  deprived  of  this  election.  The  cases  cited  on  the 
other  side  are  those  of  non-feasance,  whereas  this  is  a  case  of  misfeas- 
ance ;  and  this  distinction  is  taken  by  Kennedy,  J.,  in  7  Watts,  79.  We 
think  the  point  is  clearly  settled  in  England  by  the  highest  tribunals.'' 

The  opinion  of  the  court  was  delivered  by  — 

Rogers,  J.  —  We  affirm  this  judgment,  on  the  authority  of  the  cases- 
of  Bretherton  and  others,^  Ansell  v.   Waterhouse,^  and  Bank  of  Orange 

>  Powell  r.Layton,  5  Bos.  &Pul.  365;  Max  '7  Eng.  Com.  Law  Rep.  343;  Ansell  v. 

V.  Roberts,  6  Bos.  &  Ful.  454.  Waterhouse,  2  Chit.  1.     See  also  Bank  of 

-  Max  V.  Roberts,  12  East,  89;  Govett  v.  Orange  v.  Brown,  3  Wend.  158;  Zell  v.  Ar- 

Radnidge,  3  East,  62.  nold,  2  Pa.  295. 

3  Wilt  V.Welsh,  6  Watts,  9;  Hunt  v.Wynn,  »  Bretherton  v.  Wood,  7  Eng.  Com.  Law 

6  Watts,  47;  McCahan  v.  Hirst,  7  Watts,  175.  Rep.  343;  3  Brod.  &  B.  54. 

«  1  Salk  100.  9  Ansell  i:  Waterhouse,  18  Eng.  Com.  Law 

6  Beall  V.  King,  12  East,  452.  Rep.  227;  2  Chit.  1. 

•  Merryweather  v.  Nixan,  8  Term  Rep.  186. 


JURISDICTION    OF    SUITS    AGAINST    CARRIERS.  543^ 


Notes. 


V.  Brown,^  to  which  may  be  added  Zell  v.  Arnold.^  Justice  Savage, 
in  Bank  of  Orange  v.  Brown,^  reviews  all  the  authorities  which  bear 
on  the  question,  and  comes  to  the  conclusion  (in  which  we  concur)  that 
the  true  rule  is,  that  an  action  solely  on  the  custom  is  an  action  of  tort ; 
that  the  plaintiff  has  his  choice  of  remedies,  either  to  bring  assximpsit  or 
case ;  and  that  when  one  or  other  form  of  action  is  adopted,  it  must  be 
governed  by  its  own  rules ;  that  an  action  against  a  common  carrier 
upon  the  custom  is  founded  on  a  breach  of  duty,  —  that  it  is  a  tort  or 
misfeasance.  The  declaration  here  is  for  a  tort  or  misfeasance  ear 
delicto,  and  not  in  contract ;  the  plea,  not  guilty ;  and  from  this  follows 
that  the  action  is  joint  or  several,  and  as  a  necessary  consequence  a 
recovery  may  be  had  of  one  for  an  injury  done  by  two  or  more  of  the 
joint  tort-feasors. 

There  was,  therefore,  no  error  in  ruling  that  it  was  unnecessary  to 
prove  that  all  the  defendants  were  partners,  because  they  were  jointly 
and  severally  liable  for  tort  or  misfeasance  charged  in  the  declaration. 

Judgment  affirmed. 


NOTES. 

§  1.  Jurisdiction  of  Stilts  against  Carriers.  —  It  has  been  held  by  the  Court 
of  Appeals  of  Virginia  that  a  railroad  corporation  chartered  in  another  State,  by 
the  act  of  leasing  a  railroad  situated  in  Virginia,  makes  itself,  quoad  hoc,  a  Vir- 
ginia corporation,  so  that,  when  sued  in  the  courts  of  Virginia,  it  is  not  entitled 
to  remove  the  suit  to  the  United  States  Circuit  Court ;  *  but,  notwithstanding  the 
respect  which  is  due  to  the  judgments  of  this  court,  we  think,  in  view  of 
decisions  of  the  Supreme  Court  of  the  United  States  upon  analogous  questions, 
this  question  must  still  be  considered  as  open.  The  Supreme  Court  of  Indiana 
holds  that  that  State  has  concurrent  jurisdiction  with  the  State  of  Kentucky  over 
torts  committed  on  the  Qhio  River,  and  that  the  Indiana  statute  giving  damages 
where  the  death  of  a  person  is  caused  by  the  wrongful  act  or  omission  of 
another  extends  to  suits  against  a  carrier  for  the  killing  of  a  passenger  on  the 
Ohio  River  between  the  States  of  Indiana  and  Kentucky.^  The  Court  of  Appeals 
of  New  York  has  held  that  the  Supreme  Court  of  that  State  has  jurisdiction  of 
an  action  against  the  owners  of  a  steamboat  navigating  the  waters  of  Lake 
Charaplain  for  causing  the  death  of  a  passenger  by  negligence,  while  such  pas- 
senger was  on  their  boat  plying  between  points  within  the  State  of  New  York.* 

1  Bank  of  Orange  v.  Brown,  3  Wend.  158.  R.  Co.,  5  B.  I.  233;  Goshen  v.  Supervisors,  1 

2  Zcll  V.  Arnold,  2  Pa.  297.  W.  Va.  308;  Pennsylvania  R.  Co.  v.  Sly,  65 
8  Bank  of  Orange  v.  Brown,  3  Wend.  158.  Pa.  St.  205;  Pomeroy  v.  New  York  etc.  K. 
<  Baltimore  etc.  R.  Co.  v.  Wightman,  29  Co.,  4  Blatchf.  122). 

Gratt.  431  (citing  Baltimore  etc..  K.  Co.  v.  '  Slierlock  v.  Ailing,  44  Ind.  184. 

Gallahue,  12  Gratt.  655 ;  Railroad  Co.  v.  Har-  «  Dougan  v.  Cliamplain  Transp.  Co.,  66  N. 

ris,  12  Wall.  65;  Maryland  v.  Northern  etc.  Y.  1. 
R.  Co.,  18  Md.  193;  Sprague  v.  Hartford  etc. 


544  REMEDIES,    PUOCEDUUE,    AND     DAMAGES. 


Notes. 


In  New  York,  wliei'e  the  action  is  for  tlie  loss  of  baggage,  it  is  uot  necessary  to 
aver  that  the  plaintiff  was  without  fault.' 

An  action  may  be  brought  in  rem  against  a  vessel  for  the  death  of  a  person, 
caused  by  the  negligence  of  the  officers  of  such  vessel.'^  Statutes  giving  an  action 
where  the  injury  resulted  in  death,  although  applicable  to  marine  torts,  do  not 
infringe  the  jurisdiction  of  the  Federal  courts ;  nor  do  they  infringe  the  commer- 
cial power  of  Congress.^  Where  a  statute*  giving  an  action  for  the  death  of  a 
person,  caused  by  a  wrongful  act,  also  provides  "  that  such  action  shall  be 
brought  for  a  death  caused  in  this  State,  and  in  some  court  established  by  the 
Constitution  and  laws  cf  the  same,"  it  does  not  prevent  the  removal  of  the 
action  to  the  Federal  court  and  maintaining  it  there  by  a  non-resident  plaintiff, 
under  the  act  of  Congress  of  March  2,  1867.^ 

§  2.  Carrier  may  be  sued  in  Contractor  Tort.  —  Declarations  against  car- 
riers in  tort  are  as  old  as  the  law,  and  continued  till  Dale  v.  Hall,^  when  the 
practice  of  declaring  in  assumpsit  succeeded ;  but  this  practice  does  not  super- 
sede the  other.'  When  the  relation  of  carrier  and  passenger  is  once  formed,  the 
law  steps  in  and  annexes  to  the  carrier  certain  duties,  for  the  non-performance 
of  which  the  passenger  may  bring  an  action  of  tort;  and  this  is  the  kind  of 
action  which  is  usually  brought  when  the  passenger  is  injured  through  the  negli- 
gence of  the  carrier  or  his  servants,  or  through  violence  and  force  used  by 
either.*  Whilst  there  has  never  been  any  doubt  that  the  injured  passenger  may 
bring  an  action  of  tort,  it  is  equally  clear  that  he  may,  if  he  chooses,  waive  the 
tort  and  sue  in  assumpsit;  ^  and  accordingly  as  the  action  is  in  contract  or  tort, 
the  incidents  of  each  form  of  action  attach.  In  States  which  practice  under 
codes  by  which  the  common- law  forms  of  action  are  abolished,  whether  such  an 
action  is  to  be  deemed  an  action  ex  contractu  or  ex  delicto  is  to  be  determined 
by  the  nature  of  the  grievance  rather  than  by  the  form  of  the  declaration ;  and 
where  the  breach  of  duty  was  a  failure  to  put  the  passenger  off  at  the  proper 
station,  it  was  treated  as  an  action  for  a  tort,  so  that  exemplary  damages  might 


»  Richards  r.  Westcott,  2  Bosw.  589.  158;   McCall  ».  Forsyth,  4  Watts  &  S.  179; 

2  The  City  of  Brussels,  6  Ben.  370.    See  Pennsylvania  R.  Co.  v.  The  People,  31  Ohio 

also  Ryall  v.  Kennedy,  8  Jones  &  Sp.  347;  St.  537;  Heirn  v.  McCaughan,  33  Miss.  17; 

Plummer  v.  Webb,  1  Ware,  75;  Boutiller  ?;.  Cregin  v.  Brooklin  etc.  R.  Co.,  75  N.  Y.  192; 

Milwaukee,  8  Minn.  97;  Glaholm  v.  Barker,  Saltonstall   v.   Stockton,   Taney's    Dec.    11; 

L.  R.  1  Ch.  App.  223;  s.  c.  L,.  R.  2  Eq.  598;  Frink  v.  Potter,  17  111.  406;  New  Orleans  etc. 

Smith  V.  Brown,  L.  R.  6  Q.  B.  729.  R.  Co.  v.  Hurst,  36  Miss.  660;  Ames  v.  Union 

s  Steamboat  Co.  v.  Chase,  16   Wall.  522;  R.  Co.,  117  Mass.  541.    An  action,  under  the 

Sherlock  v.  Ailing,  93  U.  S.  99  (affirming  s.  c.  practice  in  Ohio,  against  a  foreign  corpora- 

44  Ind.  184).  tion  for  a  personal  injury  was  held  to  be  in 

*  Rev.  Stats.  Wis.  1878,  p.  1020,  §  4255.  contract,  within  the  meaning  of  that  section 

5  Railway  Co.  v.  Whitton,  13  Wall.  270.  of  the  code  which  permits  attachments  to 
r.ut  see  Whitton  v.  Chicago  etc.  R.  Co.,  25  issue  in  aid  of  suits  where  the  claim  is  a 
Wis.  424.  debt  or  demand  arising   upon  a  contract, 

6  1  Wils.  281.  judgment,  or  decree.    Pennsylvania  R.  Co. 
'  Bayley,  J.,  in  Ansell  v.  Waterhouse,  2  v.  The  People,  31  Ohio  St.  537.    Compare 

Chit.  1 ;  s.  c.  6  Mau.  &  Sel.  385.                  .  Sawyer  v.  Dulaney,  30  Texas,  479. 

8  Ansell  V.  Waterhouse,  supra;  Brether-  ^  Taney,  C.  J.,  in  Saltonstall  r.  Stockton, 

ton  I'.  Wood,  6  J.  B.  Moo.  141;  g.  c.  3  Bred.  &  Taney's  Dec.  11;  Frink  r.  Potter,  17  111.  406, 

B.  54;  Bank  of  Orange  v.  Brown,  9  Wend.  411. 


FORM   or   ACTION.  545 


Joint  and  Sev^eral  Liability. 


be  awarded. 1    Accordingly,  such  an  action  has  been  held  not  the  less  an  action 
for  a  tort  because  it  demanded  judgment  for  a  specific  sum  of  money .^ 

The  gravamen  of  such  an  action  being  a  breach  of  a  public  duty,  privity  of  con- 
tract is  not  necessary  to  support  it;  persons  may  sue  who  are  on  the  carrier's 
vehicle  by  license  merely ;  ^  and  so  may  a  mail-agent,  who  has  no  contract  directly 
v\ith  the  carrier.* 

§3.  Form  of  the  Action — Trespass  or  Case.  —  Where  the  common-law 
forms  of  action  obtain,  the  remedy  is  generally  case,  and  not  trespass ; '"  but  it 
is  well  settled  that  an  action  of  trespass  will  lie  against  a  corporation,*  and  such 
actions  are  frequently  sustained  against  incorporated  carriers  for  trespasses 
of  their  servants.^ 

§  4.  Joint  and  Several  Liability.  —  When  it  is  understood  that  the  action  may 
be  in  tort,  all  the  consequences  of  such  an  action  follow.  Where  a  person  is 
injured  by  the  joint  wrong  of  several  persons,  he  is  under  no  obligation  to  join 
all  of  them  in  his  suit,  but  he  may  bring  his  action  against  any  one  whom  he 
may  catch.  It  is  therefore  not  a  good  plea  in  abatement  to  such  an  action  that 
the  carrier  was  one  of  a  partnership  firm  and  that  his  copartners  are  not  joined 
as  defendants.*  This  rule  applies  where  the  suit  is  against  the  carrier  for  the 
loss  of  goods,  as  well  as  where  it  is  for  an  injury  to  a  passenger.*  Thus,  where 
an  action  was  against  the  master  and  unknown  owners  of  a  steamship  for  the 
value  of  a  lost  trunk,  and  the  master  alone  answered,  and  it  did  not  appear  that 
a  citation  had  been  issued  for  the  owners,  the  plaintiff  was  allowed  to  enter  a 
nolle  prosequi  as  to  the  parties  not  served.'"  So,  where  a  person  in  one  train  is 
injured  by  a  collision  between  the  train  in  which  he  is  and  another  train,  belong- 
ing to  another  carrier,  he  may  sue  both  companies  together,  or  either  of  them 
separately.il  For  the  same  reason,  if  several  are  jointly  sued,  a  verdict  in  favor 
of  part  of  them  is  good.'^ 

§  5.  Difference  in  Measure  of  Damages  between  Actions  Ex  Contractu  and 
Actions  Ex  Delicto.  —  There  is  another  light  in  which  the  question  whether  the 
action  is  in  contract  or  in  tort  assumes  importance.  If  the  action  is  for  the 
breach  of  a  contract  merely,  the  plaintiff  cannot  recover  damages  for  disappoint- 

»  New  Orleans    etc.  R.  Co.  v.  Hurst,  36  '  St.  I  ouis  etc.  R.  Co.  v.  Dalby,  19  111.  353. 

Miss.  660.  8  Ansell  v.  Waterhouse,  2  Chit.  1;  s.  c.  6 

2  Hammond    v.  North-Eastern  R.  Co.,  6  Mau.  &  Sel.  385 ;  Stockton  r.  Frey, 4  Gill, 406; 

So.  Car.  130.    For  an  example  of  declarations  McCall  v.  Forsyth,  4  Watts  &  S.  179,  ante,  p. 

where  the  action  was  held  founded  upon  a  541. 

contract,  see  Bayliss  v.  Lintott,  L.  R.  8  C.  P.  "  Bank  of  Orange  v.  Brown,  3  Wend.  153. 

345;  8.  c.  42  L.  J.  (G.  P.)  119;  28  L.  T.  (N.  8.)  »o  Forbes  v.  Davis,  18  Texas,  268. 

6ti{;.  "  Colegrove  v.   New   York   etc.  R.  Co.,  6 

■i  Ante,  p.  44.  Duer,  382.    It  was  heliJ  that  even  if  it  was  a 

*  Hammond   v.  North-Eastern  R.  Co.,  6  misjoinder  to  sue  both  companies  together. 

So.  Car.  130;  Kolton  v.  Western  R.  Corp.,  yet  it  was  cured  by  answering  and  omitting 

unte,  p.  3".  to  demur.    Ibid. 

^  Havens  ».  Hartford  etc.  R.  Co.,  28  Conn.  12  Bretherton  «.  Wood,  6  J.  B.   Moo.  141; 

€9.  «.  c.  3   Brod.  &   B.  54;  9   Price,  408;   Gunn 

6  Sabin  r.  Vermont  etc.  R.  Co.,25  Vt.  :163;  v.   Dickson,   10    Upper   Canada   Q.    B.  461; 

E  istern  Counties  R.  Co.  v.  Broom,  6  Exch.  Frink  v.  Potter,  17  111.  406,  411. 
314;  a.  c.  15  Jur.  297;  20  L.  J.  (Exch.)  196. 

35 


546  REMEDIES,    PUOCEDLKE,    AND     DAMAGES. 


Notes. 


merit,  sense  of  wrong,  and  injury  to  the  feelings.  Tlius,  where  the  complaint 
was  that  the  defendant  agreed  with  the  plaintiff  and  a  large  number  of  others  to 
convey  them  to  a  certain  place  where  a  religious  meeting  was  held  on  Sunday, 
and  to  bring  them  back  at  a  certain  appointed  time,  and  that  the  defendant 
failed  so  to  bring  them  back,  it  was  held  that  this  was  a  suit  on  a  special  con- 
tract, for  the  reason  that  the  defendant  was  under  no  legal  duty  as  a  public 
carrier  to  carry  passengers  on  Sunday ;  and  it  being  on  a  special  contract,  dam- 
age for  injured  feelings  could  not  be  recovered. •  Nor  can  exemplary  damages  be 
recovered  where  the  action  is  on  the  contract,^  the  rule  being  that,  "  in  actions  foi' 
breaches  of  contract,  damages  must  be  such  as  are  capable  of  being  estimated 
or  appreciated."  ^  But  where  the  action  is  for  a  tort,  founded  on  a  breach  of  a 
public  duty,  exemplary  damages  may  be  given.* 

§  C.  Abateraent  and  Revival.  —  Although  such  an  action  is  in  tort,  it  does  not 
abate  by  the  death  of  the  plaintiff  —  where  the  husband  sues"  for  the  loss  of  the 
services  of  his  wife  —  under  the  Revised  Statutes  of  New  York.^  Where  a 
child  died  on  a  voyage  from  Liverpool  to  New  York,  in  consequence  of  the  neg- 
ligence of  the  officers  of  the  ship,  as  was  alleged,  it  was  held,  in  the  United 
States  District  Court,  that  an  action  against  the  carrier  by  the  father  was  au 
action  in  contract ;  that  it  hence  survived  to  him  as  administrator,  and  might  be 
sued  for  in  rem.^ 

§  7.  Who  may  sue. —  (1.)  Master  or  Parent,  for  Loss  of  Service  of  Servant  or 
Child.  —  Where  the  action  is  on  a  contract  to  carry,  it  can  only  be  brought  by 
one  who  was  a  party  to  the  contract,  and  who  has  been  injured  by  a  breach  of  it. 
An  action  ex  contractu  vpill  not,  therefore,  lie  against  a  caiTier  in  favor  of  the 
master  for  an  injury  to  his  servant  whereby  he  loses  the  benefit  of  his  services, 
where  the  contract  to  carry  was  between  the  carrier  and  the  servant.'  For  the 
same  reason,  a  widowed  mother  cannot  sue  for  an  injury  dune  to  her  minor  child 
by  a  carrier  while  carrying  him.^  These  cases  cannot  be  supported  on  principle. 
When  it  is  conceded  that  the  foundation  of  the  action  against  the  carrier  for  an 
injury  to  his  passenger  is  a  tort,  and  that  the  injury  does  not  necessarily  con- 
sist in  the  breach  of  the  contract,*  it  seems  logically  to  follow  that  privity 
of  contract  is  not  necessary  to  support  such  an  action,  and  that  any  one  who 
has  sustained  direct  damage  by  the  carrier's  breach  of  duty  may  sue,  provided 
the  carrier  owed  the  duty  to  him ;  and  this  is  the  view  taken  by  the  Supreme 
Judicial  Court  of  Massachusetts,  which  holds  that  a  master  may,  in  such  a  case, 
maintain  an  action  against  the  carrier  for  an  injury  to  his  apprentice  quod  ser- 
vitium  amisit.^'>    Circumstances  may,  it  is  supposed,  exist  where  the  contract  for 

1  Walsh  V.  Chicago  etc.  R.  Co.,  42  Wis.  23.  '  Alton  v.  Midland  R.  Co.,  19  C.  B.  (N.  s.) 

2  New  Orleans  etc.  R.  Co.  v.  Hurst,  36  213 ;  Fairmount  etc.  R.  Co.  v.  Stutler,  54  Pa. 
Miss.  660.                             *  St.  375. 

3  Pollock,  C.  B.,  in  Hamlin  v.  Great  s  Fairmount  etc.  R.  Co.  v.  Stutler,  supra. 
Northern  R.  Co.,  1  Hurl.  &  N.  408,  411.  Compare  Kenuard  v.  Burton,  25  Me.  39;  «.  c. 

*  Helm  V.  McCaughan,  32  Miss.  17,  infra,  1  Thomp.  on  Neg.,  p.  368. 

§  27.  9  Supra,  §  1. 

5  2  Rev.  Stats.  N.  T.  447,  §§  1,  2;  Cregin  v.  i"  Ames  v.  Union  R.  Co.,  117  Mass.  541 
Brooklyn  etc.  R.  Co.,  75  N.  Y.  192  (distin-  citing  1  Chit.  PI.  (3  Am.  ed.)  47;  Reeve's) 
guishing  Wade  u.  Kalbfleisch,  58N.  Y.  2S2).  Dom.  Rel.  376;   Bac.  Abr.,  tit.  "  Master  and 

6  The  City  of  Brussels,  6  Ben.  370.  Servant,"  O;   McCarthy  v.  Guild,  12  Met(',_ 


WHO    MAY    SUE.  647 


Particularity  of  Statement. 


the  carriage  of  the  servant  is  between  the  master,  or  parent,  and  the  carrier, 
in  which  case,  in  either  view  of  the  question,  the  right  of  action  would  be  in 
the  master  or  parent. 

(2.)  Foreign  Administrator.  —  Whether  an  action  for  the  death  of  a  passenger 
can  be  brought  by  a  foreign  administrator  is  a  question  of  local  policy,  which 
must  be  answered  by  the  statutes  and  decisions  of  each  State.  The  general  rule 
is  that  no  suit  can  be  maintained  by  an  administrator  or  executor  in  any  other 
country  except  that  from  which  he  derives  his  authority. ^  In  Indiana  such  an 
action  may  be  brought,  and  the  right  of  action  in  such  a  case  can  only  be  ques- 
tioned by  a  plea  under  oath.^  In  Georgia,  a  foreign  administrator  could  sue 
where  the  intestate  departed  this  life  out  of  the  State.^ 

(3._)  Husband  for  Wife.  —  In  Massachusetts,  a  passenger  who,  having  a  free 
pass  for  himself,  bought  a  ticket  for  his  wife,  and  delivered  to  the  carrier  her 
trunk  without  informing  him  that  it  was  not  his,  could  maintain  an  action  in  his 
own  name  for  the  loss  of  the  trunk ;  *  but  the  case  is  not  very  clear. 

(4.)  Wife  in  her  own  Name.  —  In  New  York,  a  wife  may  sue  a  carrier  in  her  own 
name  for  the  loss  of  baggage  consisting  of  hw  wardrobe ;  ^  and  the  same  rule 
has  been  applied  in  a  suit  in  admiralty .^ 

(5.)  Assignee  of  the  Cause  of  Action.  —  In  New  York  it  has  been  held  that  the 
claim  of  a  passenger  against  a  carrier  for  the  loss  of  baggage  may  be  assigned, 
and  that  the  assignee  may  bring  suit  thereon  in  his  own  name.' 

§  8.  Counts  in  the  Declaration.  —  In  Massachusetts  —  and  this  is  supposed 
to  be  the  general  rule  where  the  old  system  of  pleading  prevails  —  the  plaintiff 
may  set  forth  his  cause  of  action  in  different  ways,  in  different  counts  of  his 
declaration.  Thus,  he  may  charge  in  one  count  that  the  defendant  ran  over 
him  while  he  was  in  the  roadway ;  in  another,  that  the  defendant  committed  an 
assault  and  battery  upon  him ;  and  in  another,  that  he  was  a  passenger  upon  the 
defendant's  car,  riding  upon  the  platform  thereof,  and  that  the  driver  wrongfully 
and  carelessly  compelled  him  to  jump  therefrom  without  checking  its  speed, 
whereby  he  was  injured,  etc.^ 

§  9.  Particularity  of  Statement  in  the  Declaration  or  Complaint. —  (1.)  In 
Actions  Ex  Delicto.  —  When  an  accident  happens  in  consequence  of  the  failure  or 
breaking  down  of  the  carrier's  means  of  transportation,  it  is  impossible  in  many 
cases  for  the  passenger  to  know  just  how  the  accident  was  brought  about;  and 

291;  Dennis  ».  Clark,  2  Cush.  347;  Rice  v.  *  Malone  v.  Boston  etc.  R.  Co.,  12  Gray, 

Nlckerson,  9  Allen,  478;  Kennedy  v.  Shea,  110  388. 

Ma68.  147;  Martinez  v.  Gerber,  3  Scott's  N.  »  Fraloff   v.  New   York    etc.    R.    Co.,   10 
R.  386;  8.  c.  3Man.  &G.  88;  HadsoU  v.  Stalle-  Blatchf.  16;  s.  c.  affirmed,  ante,  p.  502 ;  Raw- 
brass,  11  Ad.  &  E.  301 ;  Hall  v.  Hollander,  4  son  v.  Pennsylvania  R.  Co.,  48  N.  Y.  216. 
Bam.  &  Cress.  660;  Woodward  v.  Washburn,  «  The  State  of  New  York,  7  Ben.  450.    See 
3  Denio,  369.    See  also  2  Thomp.  on  Neg.,  p.  2  Thonip.  on  Neg.,  p.  1240. 
1242.  '  Freeman  v.  Newton,  3  E.  D.  Smith,  246. 

'  South- Western  R.  Co.  v.  Paulk,  24  Ga.  *  Lovett  v.  Salem  etc.  11.  Co.,  9  Allen,  557. 

366,  citing  many  authorities.  See  also  Baltimore  etc.  R.  Co.  v.  Wilkinson, 

2  Jeffersonville  R.  Co.  v.  Hendricks,  26  30  Md.  224,  230;  Toledo  etc.  R.  Co.  ».  Daniels, 
Ind.  228.  21  Ind.  256;   Wright  v.  Indianapolis  etc.  R. 

3  South- Western  R.  Co.  ».  Paulk,  24  Ga.  Co.,  18  liid.  168;  Jetfersouville  etc.  R.  Co.  v. 
356;  Cobb's  Dig.  Ga.  Stats.  341.  Vancant,  40  Ind.  2;«. 


548  REMKDIKS,    PROCEDURE,    AND     DAMAGES. 


Notes 


the  rule  being,  as  already  seen,  that  the  fact  that  such  accident  happened  is 
prima  facie  evidence  of  negligence  on  the  part  of  the  carrier,  it  is  obviously 
unnecessary  for  the  passenger  to  allege  the  particular  cause  of  the  accident.' 
In  some  jurisdictions  it  is  sufficient  to  allege  in  general  terms  that  the  accident 
was  the  result  of  the  carrier's  negligence.^  But  a  count  alleging  in  general 
terms  that  the  plaintiff  was  in  the  car  of  the  defendant,  and  was  thrown  there- 
from by  the  carelessness  of  the  defendant,  is  too  general  in  its  description  of  the 
manner  in  which  the  injury  was  sustained.^  Where  the  plaintiff  was  injured  by 
jumping  from  the  defendant's  railway  car,  it  was  held  sufficient  to  allege  that,  by 
reason  of  the  negligence  and  carelessness  of  those  operating  the  car,  it  became 
dangerous  to  remain  in  the  car,  that  the  plaintiff 's  life  and  limbs  were  en- 
dangered by  so  remaining,  and  that  in  order  to  get  out  of  such  danger  and  to 
preserve  his  life  and  limbs  he  was  obliged  to  jump  from  the  car,  whereby  he 
was  greatly  hurt,  etc.,  without  alleging  the  particular  circumstances  which  ren- 
dered it  unsafe  to  remain  in  the  car,  or  how  or  by  what  means  his  life  and  limbs 
were  endangered.*  An  allegation  that  the  carrier's  vehicle  was  so  negligently 
provided,  fitted  out,  etc.,  that  It  broke  down,  is  sufficient,  without  stating  in 
what  particular  respect  it  was  negligently  provided,  fitted  out,  etc.,  or  how  it 
broke  do-\vn.^  An  allegation  that  it  was  the  duty  of  the  defendant  to  use  due 
and  proper  care  in  conveying  the  passenger,  and  that  he  did  not  use  due  and 
proper  care,  has  been  held  a  sufficient  allegation  of  a  duty  and  a  breach  thereof, 
after  verdict,  on  a  motion  in  arrest  of  judgment.^ 

In  an  action  against  a  railway  company  for  an  injury  to  a  passenger,  it  is  not 
necessary  to  state  that  the  defendants  had  power  by  their  charter  to  become 
common  carriers;  it  will  be  sufficient  to  allege  that  they  were  owners  of  the 
road  on  which  the  injury  happened;  that  they  were,  at  the  time  of  the  injury, 
running  passenger-trains  thereon ;  and  that  they  agreed,  for  a  certain  reasonable 
reward  paid  to  them,  to  carry  the  plaintiff."  A  declaration  by  husband  and  wife 
for  a  personal  injury  to  the  wife  will  not  be  bad,  after  verdict,  because  it  alleges 
tliat  by  reason  of  the  injury  which  she  received  the  plaintiffs  were  obliged  to 
expend  $200  in  effecting  her  cure.  Though  a  recovery  cannot  be  had  in  the 
same  action  for  a  personal  injury  to  the  wife  and  for  the  expenses  attending  her 
recovery,  yet  an  allegation  touching  the  latter  subject  will  be  regarded  as  merely 
descriptive  of  the  extent  of  the  injury,  and  it  will  be  presumed  that  the  trial 
court  confined  the  evidence  to  the  only  ground  of  recovery  which  was  the  gist 
of  the  action,  namely,  the  wife's  personal  injury .^  It  is  no  misjoinder  of  counts 
for  the  declaration  to  allege  in  one  count  that  the  promise  was  made  to  the  wife, 
aud  in  another  that  it  was  made  to  the  plaintiffs,  where  the  language  of  the 
latter  count  showed  that  the  promise  was  made  for  the  wife's  benefit.* 

An  allegation  that  the  price  of  the  ticket  was  seventy  cents ;  that  the  plaintiff, 
in  the  train,  when  the  ticket  or  fare  was  demanded  by  the  conductor,  tendered 
this  amount,  which  was  refused;  that  the  conductor,  for  the  purpose  of  robbing 

1  Carmanty  v.  Mexican  Gulf  Co.,  5  La.  An.  *  Eldridge  v.  Long  Island  R.  Co..  1  Sandf. 
703;  Weed  v.  Saratoga  etc.  R.  Co.,  19  Wend.       S.  C.  S9. 

634.  6  Ware  v.  Gay,  11  Pick.  106. 

«  Allender  v.  Chicago  etc.  R.  Co.,  37  Iowa,,  «  Taylor  v.  Day,  16  Vt.  566. 

264.  7  Fuller  v.  Naugatucli  R.  Co., 21  Conn.  557. 

3  Central  R.  Co.  v.  Van  Horn,  3S  X.  J.  L.  «  Ibid. 

133.  9  Ibid. 


PARTICULARITY    OF    STATEMEhfT.  549 


Under  Statutes  in  Case  of  Death. 


and  oppressing  him,  demanded  one  dollar  and  five  cents,  and,  upon  his  failure 
to  pay  it,  compelled  him  to  leave  the  train,  makes  out  a  good  cause  of  action  on 
demurrer;  for  it  is  not  to  be  presumed,  without  evidence,  that  the  company 
made  a  distinction  between  ticket-fare  and  train-fare,  and  that  the  one  dollar  and 
five  cents  mentioned  in  the  complaint  was  the  train-fare  fixed  by  the  company. i 
In  Illinois,  the  declaration  in  an  action  for  lost  baggage  need  not  aver  that  the 
plaintiff  was  a  passenger ;  this  may  be  proved  without  an  averment,  by  proof  of 
the  fact  that  a  check  for  the  baggage  was  given  by  the  defendant  to  the  plaintiff.' 
Where  the  injury  complained  of  was  the  wrongful  ejection  by  the  conductor  of 
a  railway  company  of  the  plaintiff  from  its  cars,  it  was  held  not  necessary  to 
allege  or  prove  that  specific  authority  was  conferred  by  the  company  upon  the 
conductor  to  perform  such  acts,  for  the  court  will  take  cognizance  of  the  duties 
of  conductors  as  pointed  out  by  the  statute.^  Where  the  complaint  shows  that 
the  plaintiff  was  rightfully  upon  the  defendant's  railway  train  as  a  passenger, 
and  that  the  servants  of  the  defendant  wrongfully  struck  and  threw  the  plaintiff 
from  the  cars,  it  sufficiently  shows  that  the  wrong  complained  of  was  committed 
by  the  servants  of  the  defendant  in  their  employment  of  running  the  train.* 

(2.)  In  Actions  Ex  Contractu.  —  In  an  action  for  fare  v?rongfully  demanded  and 
collected  from  a  passenger,  it  has  been  held  that  the  plaintiff's  declaration  or 
claim  must  state  not  merely  a  claim  for  so  much  "money  had  and  received," 
but  he  must  state  that  the  defendants  received  the  money;  that  they  received  it 
from  the  plaintiff,  and,  most  important  of  all,  that  they  received  it  to  the  plain- 
tiff 's  use.* 

§  10.  Allegations  under  Statutes  giving  a  Right  of  Action  where  the  Dam- 
ages resulted  in  Death.  —  These  statutes  and  the  decisions  under  them  have 
been  considered  at  large  in  the  author's  work  on  Negligence.^  In  Illinois,  the 
declaration  in  an  action  under  such  a  statute  must  aver  that  the  railroad  on 
which  the  injury  happened  was  used  by  the  defendants  in  the  county  and  State 
in  which  the  action  is  brought,  or  it  will  be  bad  on  demurrer,  though  it  will  be 
good  after  verdict.'  In  Illinois,  Indiana,  Wisconsin,  and  New  York,  it  must 
also  state  that  the  deceased  left  a  widow  and  next  of  kin,  to  whom  damages  can 
be  distributed.^  But  in  Virginia  it  is  not  necessary  that  the  declaration  state 
that  the  deceased  left  a  family,  or  that  the  action  is  prosecuted  for  their  benefit.* 
It  has  been  held  in  the  United  States  Circuit  Court,  by  Mr.  Justice  Davis,  that 
it  is  not  necessary  ^°  that  the  declaration  should  contain  an  express  averment 

'  Avery  v.  Atchison  etc.  R.  Co.,  11  Kan.  R.  Co.  v.  Fitzgerald,  47  Ind.  79;  Indianapolis 

448.  etc.  R.  Co.  v.  Hamilton,  44  Ind.  76. 

-  Illinois  etc.  R.  Co.  v.  Copeland,  24  111.  <>  Bennett  v.  Railroad  Co.,  7  Pliila.  11. 

332.  •  2  Thomp.  on  Neg.,  pp.  1272-1309. 

'  Travers  v.  Kansas  etc.  R.  Co.,  63  Mo.  421;  i  Chicago  etc.  R.  Co.  v.  Morris,  26  111.  400. 

Wag.  Stats.  Mo.  307,  §  28.  *  Chicago  etc.  R.  Co.  v.  Morris,  supra;  In- 

<  Pittsburgh  etc.  R.  Co.  v.  Thcobold,  51  dianapolis  etc.  R.  Co.  v.  Keely,  23  Ind.  133; 

Ind.  246  (citing    Evansville    etc.  R.    Co.  v.  "Woodward  v.  Chicago  etc.  R.  Co.,  23  Wis. 

Baum,  26  Ind.  70;   Jefferson ville  R.  Co.  v.  400;  Safford  r.  Drew,  3  Duer,  627. 

Rogers,  38  Ind.  116;  Indianapolis  etc.  R.  Co.  '■•  Baltimore  etc.  R.  Co.  v.  Wightman,  29 

V.  Anthony,  43  Ind.  183;  Terre  Haute  etc.  R.  Gratt.  431,  440. 

Co.  V.  Graham,  46  Ind.  239;  Terre  Haute  etc.  '<'  Under  the  Illinois  statute  of  February 

12,  1853. 


550  REMEDIES,    PROCEDURE,    AND     DAMAGES. 


Notes. 


showing  the  manner  in  which  the  next  of  kin  have  sustained  pecuniary  loss. 
The  action  can  be  sustained  though  the  next  of  kin  had  no  legal  claim  on  the 
deceased  for  services  or  support,  the  object  of  the  statute  being  to  make  car- 
riers more  careful  of  the  lives  intrusted  to  their  care.^  This  case  was  affirmed 
by  the  Supi-eme  Court  of  the  United  States ;  ^  but  the  interpretation  there  put 
upon  the  statute  was  subsequently  denied  by  the  Supreme  Court  of  Illinois.* 

§11.  Allegation  of  the  Carrier's  Duty.  —  It  has  been  held,  in  a  case  which 
underwent  a  learned  discussion,  that  a  declaration  in  assumpsit  for  the  loss  of 
a  passenger's  baggage  was  not  bad  because  it  alleged  the  duty  of  the  defendant 
to  convey  the  plaintiff  and  his  baggage  "safely  and  securely."  The  words 
''safely  and  securely"  did  not  necessarily  import  a  more  extended  duty  than 
that  of  ordinary  care.*  So,  a  declaration  against  a  carrier  which  alleges  that  it 
became  his  duty  to  carry  the  plaintiff  safely,  does  not  mean  safely  at  all  events, 
but  will  be  supported  by  proof  of  a  want  of  due  care.* 

§  12.  Allegation  of  Damages.  —  Under  the  common  allegation  ad  damnum, 
only  those  damages  can  be  recovered  which  necessarily  result  from  the  act 
complained  of,  and  which  are  properly  termed  general  damages.  The  reason  i-s, 
that  the  defendant  must  be  presumed  to  be  aware  of  the  necessary  consequences 
of  his  conduct,  and  therefore  cannot  be  taken  by  surprise  in  the  proof  of  them. 
But  damages  which  do  not  necessarily  flow  from  the  principal  fact,  though 
possibly  attendant  upon  it,  are  denominated  special.  To  prevent  surprise  to 
the  defendant,  such  damages  must  be  particularly  specified  In  the  declaration, 
or  else  the  plaintiff  will  not  be  permitted  to  give  evidence  of  them.  Under  the 
head  of  general  damages  may  be  classed  the  direct  expenses  incurred  by  the 
plaintiff  in  consequence  of  the  injury;  the  loss  of  his  time,  the  bodily  and  mental 
suffering  he  has  endured,  and  any  incurable  hurt  inflicted ;  for  these  •  may  be 
classed  among  the  necessary  results  of  the  injury.  But  damages  arising  from 
the  circumstance  of  the  injured  passenger  being  the  head  of  a  dependent 
family  are  classed  as  special  damages,  since  they  have  no  necessary  connection 
with  the  injury.  They  must,  therefore,  be  specially  averred  in  order  to  let  in 
evidence  of  thera.^  An  allegation  that  by  reason  of  the  failure  of  the  defendant 
to  carry  the  plaintiff  according  to  his  contract,  the  plaintiff  "  was  subjected  to 
great  inconvenience  and  injury,"  is  sufficient  to  let  in  proof  that  the  plaintiff 
became  sick  by  reason  of  not  being  furnished  with  a  sufficient  quantity  of  bed- 
clothing;  for  this  is  general,  and  not  special,  damage.'  A  passenger  wrong- 
fully ejected  from  a  train  at  night,  offered  to  prove  at  the  trial  that  at  the 
time  he  was  put  off  the  cars  his  wife  was  pregnant  and  within  four  months 
of  conflnement,  and  that  after  his  ejection  from  the  cars  he  suffered  great 
anxiety  and  distress  of  mind  on  her  account,  believing  that  she  would  be  much 

1  Barron  v.  Illinois  etc.  R.  Co.,  1  Biss.  412,  *  Harris  v.  Costar,  1  Car.  &  P.  636. 

453.  «  Laing  v.   Colder,  8  Pa.   St.  479   (citing 

2  Railroad  Co.  v.  Barron,  5  Wall.  90.  Sampson  v.  Coy,  15  Mass.  493).    See  also  Ohio 

3  Chicago  etc.  R.  Co.  v.  Shannon,  43  111.       etc.  R.  Co.  v.  Selby,  47  Ind.  471. 

338;  s.  c.  1  Ch.  Leg.  N.  105.  '  Roberts  v.  Graham,  6  Wall.  578  (citing 

*  Ross  V.  Hill,  2  C.  B.  877.  Ward  v.  Smith,  11  Price,  19). 


ALLEGATION    OF    DAMAGES.  551 


Denial  of  Contributory  Negligence. 

affected  by  his  failure  to  arrive  on  the  train,  and  by  the  report  of  his  ejection 
which  would  reach  her  by  the  other  passengers.  There  being  no  allegation  of 
such  anxiety  and  distress  of  mind  on  his  part  in  the  complaint,  it  was  held  to 
be  error  to  admit  evidence  to  prove  it.' 

Impaired  prospects  of  marriage,  resulting  from  an  injury  to  a  female  passenger, 
must  be  specially  alleged  in  order  to  constitute  an  element  in  the  computation 
of  damages. 2  But  damages  for  bodily  pain  suffered  by  reason  of  injuries 
received  in  a  railroad  accident  need  not  be  specially  alleged.  They  are  general 
damages  implied  by  law.'  And  the  peculiar  state  of  the  plaintiff's  health  at 
the  time  of  exposure  in  consequence  of  the  defendant  failing  to  carry  according 
to  advertisement,  may  be  proved  in  aggravation  of  damages  without  being 
specially  alleged.*  And  although  there  is  no  allegation  of  the  nature  and 
■extent  of  the  plaintiff's  business,  evidence  upon  this  point,  and  that  on  account 
of  the  injury  the  plaintiff  was  incapacitated  from  attending  to  and  conducting 
that  business,  may  be  heard  for  the  purpose  of  assisting  the  jury  to  determine 
whether  the  plaintiff  sustained  an  injury  of  no  slight  character,  and  that  it  was 
followed  by  expense,  suffering,  and  loss  of  time  which  had  for  him  a  pecuniary 
value.* 

§  13.  WTiether  the  Plaintiff  must  deny  Contributory  Negligence.  —  There 
is  a  difference  of  opinion  among  the  courts  as  to  whether  the  plaintiff  in  an  ac- 
tion for  negligence  is  bound  to  deny  that  he  was  guilty  of  contributory  negligence 
on  his  part.  It  is  held  in  several  of  the  States,  that  in  order  to  make  out  a  primci 
facie  case  the  plaintiff  must  not  only  show  negligence  on  the  part  of  the  defend- 
ant, but  he  must  also  show  that  he  was  in  the  exercise  of  due  care  in  respect  to 
the  occurrence  from  which  the  injury  arose.    This  is  held  in  Massachusetts,* 


*  Indianapolis  etc.  R.  Co.  v.  Milligan,  50  bie,  supra;  Adams  v.  Carlisle,  21  Pick.  146; 
tnd.  392.  Bigelow  v.  Rutland,  4  Cush.  247 ;  Bosworth  v. 

»  Hunter  v.  Stewart,  47  Me.  419.  Swansey,  10  Mete.  363,  365;  Parker  v.  Adams, 

3  Curtiss  V.  Rochester  etc.  R.  Co.,  20  Barb.  12  Mete.  415,  417 ;  Lucas  v.  New  Bedford  etc. 

282  (affirmed  in  18  N.  Y.  534);  Ohio  etc.  E.  R.  Co.,  6  Gray,  64;  Robinson  v.  Fitchburg 

Co.  v.  Selby,  47  Ind.  471.  etc.  R.  Co.,  7  Gray,  92;  Callahan  v.  Bean, 

*  Heirn  v.  McCaughan,  32  Miss.  17.  9  Allen,  401 ;  Hickey  v.  Boston  etc.  R.  Co.,  14 
6  Wade  V.  Leroy,  20  How.  34;  Nebraska  Allen,  429,  431;  Gaynor  v.  Old  Colony  R.  Co., 

City  V.Campbell,  2  Black,  590;  Ballou  v.  Far-  100  Mass.  208;  Murphy  v.  Deane,  101  Mass. 

num,  11  Allen,  73.    But  see  Ilolyoke  v.  Grand  455 ;  Aliyn  v.  Boston  etc.  R.  Co.,  105  Mass.  77 ; 

Trunk  R.  Co.,  48  N.  H.  541.  Lane  v.  Atlantic  Works,  107  Mass.  104.    It  i« 

«  The  first  case  in  Massachusetts  which  not  necessary  for  the  plaintiff  to  aver  due 

clearly  decides  that  the  burden  of  proof  is  care  on  his  part  in  order  to  introduce  proof 

upon  the  plaintiff  to  show  the  absence  of  of  it.    May  v.  Princeton,  11  Mete.  442.    In 

contributory  negligence  on  his  part  is  Lane  later  cases  it  is  held  that  the  proof  of  due 

V.  Orombie,  12  Pick.  177.    The  court  treats  the  care  on  the  part  of  the  plaintiff  need  not  be 

question  as  settled,  and  cites  as  authority  direct,  but  the  inference  of  such  care  may  bo 

Butterfleld  v.  Forrester,  11  East,  61 ;  Harlow  drawn  from  the  absence  of  all  appearance 

V.  Humlston,  6  Cow.  191;  Smith  v.  Smith,  2  of  fault,  either  positive  or  negative,  on  his 

Pick.  621.    These  cases,  however,  go  no  fur-  part,  in  the  circumstances  under  which  the 

ther  than  to  assert  the  doctrine  that  a  plaintiff  injury  was  received.    Mayo  t;.  Boston  etc.  R. 

cannot  recover  if  his  evidence  shows  he  was  Co.,  104  Mass.  137;   Prentiss  v.  Boston,  112 

guilty  of  contributory  negligence.    Johnson  Mass.  43;   Hinckley  v.  Cape  Cod  B.  Co.,  120 

V.  Hudson  River  R.  Co.,  5  Duer,  21,  25.    The  Mass.  257,  262. 
cases  in  Massachusetts  follow  Lane  v.  Crom- 


552 


REMEDIES,    PROCEDURE,    AND     DAMAGES. 


Notes. 


Maine,^  lovva,^  Illinois,^  Connecticut/  Mississippi, ^   Michigan,"  and   Indiana.' 
In  Pennsylvania,**    Missouri,'    Wisconsin,"'  Kentuclvy,"    Maryland,'-'   Kansas, 
Alabama,!*  Minnesota, ^^  New  Jersey,'^  and  California,"   and    in   the   federal 


'  The  law  is  clear  and  unquestioned  that 
the  plaintiff  must  satisfy  the  jury,  as  an 
affirmative  fact,  to  be  established  by  him  as 
a  necessary  part  of  his  case,  that  at  the  time 
of  the  accident  he  was  in  the  exercise  of 
ordinary  care.  Gleason  v.  Bremen,  50  Me. 
•222,  224;  Buzzell  v.  Laconia  Man.  Co.,  48  Me. 
113.  See  also  Dickey  v.  Maine  Tel.  Co.,  46 
Me.  483;  Perkins  v.  Eastern  etc.  R.  Co.,  29 
-Me.  307;  Merrill  v.  Hampden,  26  Me.  234; 
Kennard  v.  Burton,  25  Me.  39,  49.  Although 
the  burden  of  proof  of  due  care  is  upon  the 
plaintiff,  yet  it  may  be  inferred  from  cir- 
cumstances. French  v.  Brunswick,  21  Me. 
29;  Foster  v.  Dixfleld,  18  Me.  380. 

-  Rusch  V.  Davenport,  6  Iowa,  443;  Rey- 
nolds V.  Hindman,  32  Iowa,  146,  148;  Plaster 
V.  Illinois  etc.  R.  Co.,  35  Iowa,  449;  Carlin  v. 
Chicago  etc.  R.  Co.,37  Iowa,  316;  Muldowney 
V.  Illinois  etc.  R.  Co.,  39  Iowa,  615;  s.  c.  36 
Iowa,  462;  32  Iowa,  176;  Patterson  v.  Bur- 
lington etc.  R.  Co.,  38  Iowa,  279;  Way  v. 
Illinois  etc.  R.  Co.,  40  Iowa,  IMI.  While  it 
is  the  settled  rule  in  Iowa  that  in  an  action 
for  injuries  resulting  from  negligence  the 
burden  of  proof  is  upon  the  i)laintiff  to 
show  that  the  injury  occurred  without  want 
of  any  reasonable  care  on  his  part,  yet  this 
may  be  inferred  from  circumstances,  with- 
out being  directly  shown.  Nelson  v.  Chicago 
etc.  R.  Co.,  38  Iowa,  564;  Murphy  v.  Chicago 
etc.  R.  Co.,  45  Iowa,  661 ;  s.  c.  38  Iowa,  539. 

3  Aui-ora  Branch  R.  Co.  v.  Grimes,  13  111. 
585;  Dyer  v.  Talcott,  16  111.  300;  Galena  etc. 
R.  Co.  V.  Fay,  16  111.  .558 ;  Chicago  v.  Major, 
18  111.  349;  Galena  etc.  R.  Co.  v.  Jacobs,  20 
111.  478;  Chicago  etc.  R.  Co.  v.  Hazzard,  26 
111.  373;  Chicago  etc.  R.  Co.  v.  Gregory,  58 
111.  272;  Kepperly  v.  Ramsdeu,  83  111.  354. 

■•  Beers  v.  Housatonic  R.  Co.,  19  Conn.  566; 
Park  V.  O'Brien,  23  Conn.  339;  Fox  v.  Glas- 
tenbury,  29  Conn.  204. 

'•>  Vicksburg  v.  Hennessy,  54  Miss.  391. 

f'  Deti-oit  etc.  R.  Co.  v.  Van  Steiuburg,  17 
Mich.  99, 119. 

1  In  an  action  for  an  injury  caused  by  the 
negligence  of  another,  it  must  appear  from 
the  complaint,  either  by  express  averment 
or  by  a  particular  showing  of  the  facts,  that 
the  injury  complained  of  occurred  without 
the  fault  or  negligence  of  the  plaintiff. 
Evansville  etc.  R.  Co.  v.  Dexter,  24  Ind.  411; 
Evansville  etc.  R.  Co.  v.  Hiatt,  17  111.  102,  105. 
See  also  Mount  Vernon  v.  Dusouohett,  2  Ind. 
5S6;  Wabash  etc.  Canal  r.  Mayer,  10  Ind.  400; 
Indianapolis  etc.   R.  Co.  v.  Keely's  Admin- 


istrator, 23  Ind.  133;  Toledo  etc.  R.  Co.  r. 
Bevin,  26  Ind.  443;  Jeffersonville  R.  Co.  r. 
Hendricks,  26  Ind.  228;  Pittsburgh  etc.  R. 
Co.  V.  Vining's  Administrator,  27  Ind.  513; 
Michigan  etc.  R.  Co.  v.  Lantz,  29  Ind.  528; 
Jackson  v.  Indianapolis  etc.  R.  Co.,  47  Ind. 
454;  Riest  v.  Goshen,  42  Ind.  339.  The  plain- 
tiff must  show  affirmatively  that  his  fault  or 
negligence  did  not  contribute  to  the  injury. 
Hathaway  v.  Toledo  etc.  R.  Co.,  46  Ind.  25, 
30.  The  case  of  Wayne  County  Turnpike 
Co.  V.  Berry,  5  Ind.  286,  288,  seems  to  hold 
that  the  plaintiff 's  want  of  contributory 
uegligence  might  be  inferred  from  the  cir- 
cumstances. 

8  Beatty  v.  Gilmore,  16  Pa.  St.  463  ;  Erie  v. 
Schwingle,  22  Pa.  St.  384;  Pennsylvania 
Canal  Co.  v.  Bentley,  66  Pa.  St.  30 ;  Bush  v. 
Johnson,  23  Pa.  St.  209;  Hays  v.  Gallagher, 
72  Pa.  St.  136  (explaining  Waters  v.  Wing, 
59  Pa.  St.  211) ;  Allen  v.  Willard,  57  Pa.  St. 
374 ;  Mallory  v.  Griffey,  85  Pa.  St.  275 ;  Weiss 
V.  Pennsylvania  R.  Co.,  79  Pa.  St.  387;  Penn- 
sylvania R.  Co.  V.  Weber,  76  Pa.  St.  157;  s.  c. 
72  Pa.  St.  27.  See  Pennsylvania  R.  Co.  v. 
McTighe,  46  Pa.  St.  316. 

*  Thompson  v.  North  Missouri  R.  Co.,  51 
Mo.  190;  Hicks  v.  Pacific  R.  Co.,  65  Mo.  34; 
s.  c.  64  Mo.  430;  Schuerman  v.  Missouri  R. 
Co.,  3  Mo.  App.  565. 

10  Prideaux  v.  Mineral  Point,  43  Wis.  513, 
524;  Hoyt  v.  Hudson,  41  Wis.  105;  Achten- 
hagen  v.  Watertown,  18  Wis.  331;  Potter  v. 
Chicago  etc.  R.  Co.,  22  Wis.  615;  s.  c.  21  Wis. 
372;  Milwaukee  etc.  R.  Co.  v.  Hunter,  11 
Wis.  160.  The  above  cases  overrule  the  con- 
trary doctrine  held  in  Dressier  v.  Davis,  7 
Wis.  527,  and  Chamberlain  v.  Milwaukee  etc. 
R.  Co.,  7  AVis.  425,  431. 

"  Paducah  etc.  R.  Co.  v.  Hoehl,  12  Bush,  41 ; 
Louisville  etc.  Canal  Co.  v.  Murphy,  9  Bush, 
522. 

12  Freeh  v.  Phila.  etc.  R.  Co.,  39  Md.  574. 
See  Irwin  v.  Sprigg,  6  Gill,  200,  206;  Balti- 
more V.  Marriott,  9  Md.  160. 

13  Kansas  etc.  R.  Co.  v.  Pointer,  14  Kan. 
37;  s.  c.  9  Kan.  620. 

»  Smoot  V.  Wetumpka,  24  Ala.  112. 
1"  Hocum  V.  Weitherick,  22  Minn.  152. 

16  New  Jersey  Express  Co.  v.  Nichols,  32 
N.  J  L.  166;  s.  c.  33  X.  J.  L.  434;  Duraut  r. 
Palmer,  29  N.  J.  L.  544;  Moore  v.  Central  R. 
Co.,  24  N.  J.  L.  268. 

17  Gay  V.  Winter,  34  Cal.  153, 164;  Robinsson 
V.  Western  Pacific  R.  Co.,  48  Cal.  409,  426; 
McQuiliken  v.  Central  Pacific  R.  Co.,  50  Cal.  7. 


CONTRIBUTORY  NEGLIGENCE.  553^ 


Whether  Plaintiff  must  deny. 


courts,!  it  is  held  that  the  negligence  of  the  plaintiff  contributing  to  the  injury 
complained  of  is  a  matter  of  defence,  and  that,  ordinarily,  the  burden  of  proviug 
it  is  on  the  defendant.  In  New  York^  and  several  other  States  the  decisions 
are  irreconcilable.^ 

We  apprehend  that  in  actions  by  passengers  against  carriers  the  courts  of 
each  State  will  in  this  respect  follow  the  rule  which  they  have  adopted  in  other 
actions  for  negligent  injuries.  In  New  York,  where,  as  already  seen,  the  authori- 
ties are  in  conflict,  it  has  been  held  that  to  entitle  a  person  who  has  been  injured 
by  an  accident  happening  to  a  train  of  cars  on  which  he  was  a  passenger  to 
recover  damages  for  the  injury,  he  must  establish  affirmatively  (1)  that  he  wa* 
guilty  of  no  negligence  which  contributed  to  the  injury;  (2)  that  the  defend- 
ant was  guilty  of  such  negligence.*  And  the  same  rule  obtains  in  Indiana.^  But 
we  apprehend  that  this  is  not  the  law.  It  is  in  conflict  with  the  entire  body  of 
decisions  which  hold  that  the  failure  of  the  carrier's  means  of  transportation, 
whereby  an  accident  happens  to  passengers,  is  prima  facie  evidence  of  negligence 
on  his  part.  The  rule  in  the  cases  which  we  have  just  quoted  shifts  the  burden 
from  the  carrier  to  the  passenger.  In  Missouri^  it  is  not  necessary  to  allege 
that  the  plaintiff  was,  at  the  time  of  the  injury,  exercising  due  care,  and  not 
guilty  of  contributory  negligence.  In  Wisconsin  it  has  been  held  necessary  so  to 
allege,^  but  the  cases  so  holding  have  been  overruled.^  In  Indiana,  where  this 
rule  obtains,  it  is  sufficient  if  it  appears  from  the  facts  stated  that  the  plaintiff 
was  without  fault.  Thus,  where  the  plaintiff  stated  that  the  injury  arose  from  a 
broken  rail,  which  the  company  had  carelessly  left  unrepaired  for  a  long  time, 
whereby  the  car  in  widch  the  plaintiff  was  being  carried  as  a  passenger  was 
thrown  from  the  track,  and  the  plaintiff  thereby  injured,  etc.,  this  was  held  a 
good  statement  without  an  express  averment  that  the  plaintiff  was  without 
fault.9    In  Illinois,  while  it  is  not  necessary  to  allege  that  the  plaintiff  was  free 

1  Railroad  Co.  v.  Gladmon,  15  Wall.  401.  Westfleld,  39  Vt.246;  Moore  v.  Shreveport,  S 

2  It  seems  the  plaiatifiF  must  prove  the  La.  Au.  645;  Walker  v.  Herron,  22  Texas,  55, 
absence  of  contributory  negligence  on  his  61 ;  Little  Miami  K.  Co.  v.  Stevens,  20  Ohio, 
part.  Warner  v.  New  York  etc.  R.  Co.,  44  N.  415,  417.  In  Alabama,  the  plaintitf  need  not 
Y.  465  (reversing  s.  c.  45  Barb.  299) ;  Besiegel  allege  his  freedom  from  fault,  in  his  com- 
V.  New  York  etc.  R.  Co.,  14  Abb.  Pr.  (N.  8.)  plaint.  Smoot  v.  Wetumi)ka,  24  Ala.  113. 
29;  Curran  V.  Warren  etc.  Man.  Co.,  36  N.  Y.  See  also  Dillon  v.  Union  Pacific  R.  Co.,  3 
153;  Suydam  v.  (irand  Street  etc.  R.  Co.,  41  Dill.  319,  325.  The  plaintiff  must  show  that 
Barb.  375;  De  nencfletti  r.  Mauchiu,  1  Hilt.  he  used  ordinary  care.  Beardsley  v.  Swan, 
213;  Burke  v.  Broadway  etc.  R.  Co.,  34  How.  4  McLean,  333;  Hull  v.  Richmond,  2  Woodb. 
Pr.  239;  Holbrook  v.  Utica  etc.  R.  Co.,  12  N.  &  M.  337.  345. 

Y.  236;  8.  c.  16  Barb.  113;  Spencer  v.  Utica  <  Deyo  v.  New  York  etc.  R.  Co.,  34  N.  Y. 

etc.  R.  Co.,  5  Barb.  3.37;  Ryan  v.  Hudson  etc.  9.    See  Button  v.  Hudson  River  K.  Co.,  18  N. 

R.  Co.,  1  Jones  &  Sp.  137;  Gillespie  v.  New-  Y.  248. 

burgh,  54  N.  Y.  468,  471.    But  see  Johnson  v.  '•>  Jeffersonville  R.  Co.  v.  Hendricks,  26 

Hudson  River  R.  Co.,  20  N.  Y.65;  s.  c.  6  Duer,  Ind.  228;  Michigan  etc.  R.  Co.  v.  L.antz,  29 

633;  5  Duer,  21;  Robin.son  v.  New  York  etc.  Ind.  528. 

Co.,  65  Barb.  146 ;  Hackford  v.  New  York  etc.  "  Llojd  v.  Hannibal  etc.  R.  Co.,  53  Mo.  509. 

R.   Co.,  6  Lans.  381;  s.  c.  43  How.   Pr.  222;  '  Chamberlain  v.  Milwaukee  etc.  R.  Co., 

Squire  ».  Central  Park  etc.  R.  Co.,  4  Jones  &  7  Wis.  425;  Dressier  v.  Davis,    7  Wis.  527. 

Sp.  436,  and  Button  v.  Hudson  River  R.  Co.,  «  Milwaukee  etc.  R.  Co.  v.  Hunter,  11  Wis. 

18  N.  Y.  248.  160,  and  cases  previously  cited. 

i  Lester  v.  Pittsford,  7  Vt.  1.58;  Barber  ».  "  Michigan  etc.  R.  Co.  v.  Lantz,  29  Ind. 

Essex,  27  Vt.  62 ;  Hyde  v.  Jamaica,  27  Vt.  443 ;  528. 
Hill  V.  New  Haven,  37  Vt.  501;    W.tlker  v. 


554 


REMEDIES,    PROCEDURE,    AND     DAMAGES. 


Notes. 


from  negligence,  yet  if  tlie  declaration  shows  that  he  was  guilty  of  negligence, 
and  it  does  not  appear  from  the  averments  that  his  negligence  in  comparison 
with  the  defendant's  was  slight,  while  that  of  the  latter  was  gross,  it  will  not 
sustain  a  judgment  by  default.^ 

§  14.  Particularity  of  Statement  in  the  Defensive  Pleadings.  —  The  presump- 
tion, where  the  accident  happens  in  consequence  of  the  breaking  of  the  carrier's 
means  of  transportation,  being,  as  already  seen,^  that  the  carrier  was  guilty  of 
negligence,  he  must,  in  a  defensive  pleading,  allege  facts  which  negative  this 
presumption.  If,  as  is  generally  the  case,  his  defence  is  that  the  injury  was  the 
result  of  inevitable  accident,  he  must  state  facts  which,  if  true,  show  that  the 
accident  was  inevitable;  obviously  a  statement  of  facts  which  are  consistent 
with  negligence  will  be  no  defence.*  Where  the  injury  arose  from  a  boiler 
explosion,  the  averment  of  compliance  with  the  Federal  statute  regulating  the 
use  of  steam  on  vessels  carrying  passengers  will  not,  without  more,  constitute  a 
defence  to  the  action.  The  answer  must  aver  care  and  deny  negligence ;  for  the 
carrier  may  have  complied  with  the  statute  and  yet  have  been  negligent.* 

An  answer  that  the  passenger  was,  at  the  time  of  the  accident,  standing  upon 
the  platform  of  the  car  contrary  to  the  rules  of  the  company,  of  which  he  had 
notice,  that  it  was  dangerous  to  stand  upon  the  platform  while  the  train  was  in 
motion,  "  wherefore  he  says  that  the  injury  sustained  by  the  plaintiff  was  the 
result  of  his  own  carelessness  in  being  in  an  improper  place,"  is  bad,  because  it 
does  not  allege  as  a  matter  of  fact  that  the  plaintiff  was  injured  by  reason  of  his 
being  upon  the  platform  at  the  time  of  the  accident.  The  conclusion  of  the 
pleader  that  the  injury  was  the  result  of  the  plaintiff 's  own  carelessness  is  not 
equivalent  to  such  an  allegation  of  fact.* 

§  15.  Variance  between  Allegation  and  Proof.  —  Cases  against  carriers  pre- 
sent many  illustrations  of  the  familiar  rule  that  in  order  to  recover  there  must 
be  no  substantial  variance  between  the  allegations  and  the  proofs.  The  cases, 
no  doubt,  bear  out  the  rule  stated  by  Cowekt,  J.,  in  Weed  v.  Saratoga,  etc.  Bail- 
road  Company,^  that  where  the  action  is  in  tort  or  on  the  custom,  instead  of  on 
the  contract,  formal  variances  will  be  disregarded  at  nisi  prius,  and  on  a  motion 
for  a  new  trial  the  party  will  be  allowed  to  amend.  An  objection  to  evidence  on 
account  of  variance  must  be  taken  when  the  evidence  is  offered ;  it  cannot  be 
taken  advantage  of  on  motion  for  a  new  trial  nor  in  a  court  of  error.^  If 
it  is  not  taken  when  the  evidence  is  offered,  the  court  may  instruct  the  jury 
upon  the  whole  field  of  inquiry  governed  by  it.^ 

Proof  that  the  wheel  of  a  stage-coach  ran  off  in  consequence  of  the  nut  which 
secures  the  wheel  being  unfit  for  that  purpose,  may  be  made  under  an  allegation 
that  the  coach  was  so  carelessly  provided,  fitted  out,  etc.,  that  it  broke  down.^ 

1  Chicago  etc.  E.  Co.  v.  Coss,  73  111.  394.  ing  Mosher  v.  Lawrence,  4  Denio,  421 ;  Law- 
«  Ante.  p.  209.                                                           rence  v.  Barker,  5  Wend.  305;  Newberry  v. 

2  Burns  v.  Cork  etc.  R.  Co.,  Irish  Rep.  13  Lee,  3  Hill, 523;  McMicken  u. Brown,  6  Mart. 
O.  L.  543.  (N.  s.)  86;  Goslin  v.  Corry,  7  Man.  &  G.  347; 

*  Curran  v.  Cheeseraan.  1  Cin.  Superior       Doe  r.  Benjamin,  9  Ad.  &  E.  644). 

Ct.  52.  8  Boyce  v.  California  Stage  Co.,  25  Cal. 

6  Lafayette  etc.  R.  Co.  v.  Sims,  27  Ind.  59.  460. 

•  19  Wend.  534.  «  Ware  v.  Gay,  11  Pick.  106. 
'  Roberts  v.  Graham,  6  Wall.  578,  581  (cit- 


VARIANCE. 


555 


Between  Allegations  and  Proofs. 


But  under  a  declaration  that  the  defendant  "  negligently  drove,  conducted,  and 
managed  his  coach,"  there  can  be  no  recovery  if  the  negligence  proved  was  in 
sending  out  an  insufficient  coach. ^  So,  where  the  allegation  was  that  the  injury 
was  produced  by  defective  ties,  a  defective  wheel,  and  the  unskilfulness  of  the 
company's  servants,  it  was  error  to  permit  the  plaintiff  to  introduce  evidence 
to  show  that  the  accident  was  caused  by  the  high  rate  of  speed  of  the  defend- 
ant's train. 2  An  allegation  that  the  passage-money  was  paid  by  the  plaintiff  is 
sustained  by  proof  that  it  was  paid  by  the  charterers  of  the  ship,  to  whom  the 
plaintiff  was  clerk,  and  for  whom  he  acted  as  supercargo  on  the  voyage.'  When 
the  carrier  fails  to  transport  the  passenger  according  to  the  contract,  passage- 
money  may  be  recovered  under  a  count  for  money  had  and  received,  but  not 
for  money  lent  and  advanced,  or  for  money  paid,  laid  out,  and  expended.*  So, 
an  allegation  of  the  delivery  of  baggage  to  a  cari'ier  by  the  plaintiff  is  supported 
by  evidence  of  the  delivery  by  an  agent  of  the  plaintiff.'  Under  a  count  setting 
out  a  contract  to  transport  the  plaintiff  in  a  particular  vessel,  the  plaintiff  cannot 
recover  damages  for  failing  to  transport  him  in  any  vessel,  —  the  particular  vessel 
having  been  wrecked.  He  can  only  recover  the  passage-money  which  he  paid, 
with  interest.® 

Under  a  declaration  which  stated  that  the  defendant  contracted  to  carry  the 
plaintiff  from  London  to  Blackheath,  evidence  was  given  that  the  coach  ran 
from  Charing  Cross  to  Blackheath,  that  it  was  inscribed  "London  to  Black- 
heath,"  and  that  the  plaintiff  got  on  at  the  Elephant  and  Castle,  that  being 
within  what  is  commonly  called  London;  and  this  was  no  variance.''  So,  a 
<leclaration  that  the  plaintiff  delivered  a  trunk  to  the  defendant,  to  be  put 
into  a  coach  at  Chester  in  the  county  of  Chester,  was  supported  by  evidence 
that  it  was  delivered  in  the  city  of  Chester,  which  is  a  county  of  itself,  separate 
from  the  county  of  Chester  at  large,  there  being  no  evidence  offered  of  the 
existence  of  any  other  place  called  Chester.^  And  where  the  complaint 
charged  the  defendants  as  common  carriers  generally,  without  defining  their 
route,  proof  that  they  confined  themselves  to  New  York  and  Brooklyn  was 
held  to  create  no  variance.^ 

Where  two  persons,  A.  and  B.,  jointly  undertook  the  management  of  a  stage- 
wagon,  each  with  his  own  horses  for  a  specified  distance,  and  were  jointly 
interested  in  the  profits,  and  an  action  was  brought  by  a  passenger  against  A. 
only,  for  an  injury  which  he  had  sustained  while  being  transported  by  the  ser- 
vants of  A.  and  B.,  an  averment  that  the  negligence  was  that  of  the  driver  of  A. 
was  sustained  by  proof  that  the  driver  was  actually  employed  by  B.  in  conduct- 
ing the  wagon  for  his  own  stages.'" 

In  trespass  on  the  case  against  a  carrier,  the  principle  applies  that  evidence 
cannot  be  given  of  an  act  which  amounts  to  an  independent  trespass,  unless  it  is 
counted  upon  in  the  declaration.    Thus,  where  the  counts  were  for  a  failure  to 

>  Mayor  v.  Humphreys,  1  Car.  &  P.  251.  •  Brigj^s  v.  Vanderbilt,  19  Barb.  222. 

*  Toledo  etc.  R.  Co.  v.  Beggs,  8.5  111.  80.  '  Ditcham  v.  Chivis,  4  Bing.  706;  «.  c.  1 
Compare  Union  Pacific  U.  Co.  v.  Hand,  7       Moo.  &  P.  735. 

Kan.  380.  *  Woodward  v.  Booth,  7  Barn.  &  Cress.  301. 

»  Young  V.  Fevvson,  8  Car.  &  P.  55.  •  Richards  v.  Westcott,  2  Bosw.  .589. 

*  Briggs  V.  Vanderbilt,  l'.>  I'.arb.  2.22.  w>  Waland  r.  Elkins,  1  Stark.  272. 
»  Richards  v.  Westcott,  2  I!<>sw.  590. 


556  EEMEDIES,    PROCEDURE,    AND     DAMAGES. 


Notes. 


transport  to  his  destination  and  forcibly  bringing  him  back  to  the  starting-point,. 
and  it  appeared  that  the  plaintiff  had  purchased  a  ticket  with  a  counterfeit  note, 
and  that  the  conductor  had,  as  instructed,  insisted  on  good  money,  and  had 
taken  from  him  a  hundred-dollar  bill,  giving  it  to  the  conductor  of  the  returning 
train  on  which  the  passenger  went  back,  and  that  the  latter  conductor  carried 
the  bill  beyond  the  original  starting-point,  so  that  the  plaintiff  had  to  telegraph 
for  it,  it  was  held  that  testimony  as  to  the  act  of  the  second  conductor  in  tem- 
porarily detaining  the  bill  was  improperly  admitted.' 

Every  thing  is  admissible  under  the  general  issue  which  shows  that  the  carrier 
was  not  guilty  of  any  thing  actionable  in  respect  of  the  matters  charged  in  the 
declaration.^ 

§  16.  Points  of  Evidence. —  (1.)  Presumptions. — We  have  already  seen  that 
a  presumption  of  negligence  arises  against  the  carrier  from  an  occurrence  of 
an  accident  through  the  failure  of  any  of  his  means  of  transportation.^  A  col- 
lision between  two  boats  in  an  open  river  where  they  are  accustomed  to  pass,, 
where  there  is  room  to  pass,  and  where  they  ai-e  in  plain  sight  of  each  other, 
is  evidence  of  negligence  which  puts  the  burden  on  the  defendant  to  show  how 
it  happened.*  So,  proof  of  a  collision  on  a  railroad  whereby  a  passenger  is 
injured  is  prima  facie  evidence  of  negligence,  shifting  the  burden  upon  the  com- 
pany to  excuse  it.*  There  is  no  presumption  that  a  conductor  has  authority  to 
permit  a  passenger  to  ride  on  the  engine,  and  the  onus  is  on  such  a  person  to 
show  such  authority.*  Every  one  riding  upon  a  railroad  car  is  presumed  to  be 
lawfully  there  as  a  passenger,  and  the  onus  is  upon  the  carrier  to  prove  that  such 
a  person  is  a  trespasser.'  Stopping  a  passenger-train  at  an  unusual  place  ren- 
ders the  company  presumptively  wrong  to  that  extent,  and  the  onus  is  on  them 
to  show  that  it  was  right.*  Where  a  carrier  defends  an  action  for  loss  of  bag- 
gage on  the  ground  that  his  liability  as  a  carrier  had  ceased,  and  that  he  was 
only  liable  as  a  warehouseman,  the  burden  is  on  him  to  show  that  the  goods 
were  stored  in  a  safe  and  secure  warehouse .» 

(2.)  Want  of  Skill  in  the  Carrier^s  Servant.  — Where  the  want  of  skill  in  a  stage- 
driver  is  in  issue,  it  must  be  proved  in  the  same  manner  as  character  is  in  gen- 
eral proved,  —  by  general  evidence  as  to  his  character  for  skill,  and  not  by  proof 
of  particular  facts  which  go  to  show  a  want  of  skill. i"  So,  in  an  action  for  an 
injury  alleged  to  have  been  caused  by  unskilful  driving  of  the  carrier's  ser- 
vant, it  has  been  held  that  evidence  of  similar  negligent  acts  on  his  part  at  other 
times  was  not  admissible. '^    Nor  is  it  competent  to  show  negligence  at  other 

>  Memphis   etc.   R.    Co.   v.    Chastine,   54  6  Jfew  Orleans  etc.  R.  Co.  v.  Allbrilton,  38 

Miss.  503.  Miss.  212. 

2  Jerome  v.  Smith,  48  Vt.  230.  «  Robertson  v.  N.  Y.  etc.  R.  Co.,  22  Barb.  91. 

'  Ante,  p.  209.    See  also  Sherlock  r.  Ailing,  "  Pennsylvania  R.  Co.  v.  Books,  57  Pa.  St. 

44  Ind.  184;    Lambeth  v.  North  Carolina  R.  339. 

Co.,  66  N.  C.  494 ;  Toledo  etc.  R.  Co.  v.  Beggs,  '  Memphis  etc.  R.  Co  v.  Whitfield,  44  Miss. 

85  111.  80;  Teomans  v.  Contra  Costa  Steam  466. 

Nav.  Co.,  44  Cal.  71;  Chamberlain  v.  Milwau-  ^  Bartholomew  v.  St.  Louis  etc.  R.  Co.,  53 

kee  etc.  R.  Co.,  7  Wis.  425 ;  Pittsburgh  etc.  R.  111.  227. 

Co.  V.  Pillow,  76  Pa.  St.  510.  i"  Kinney  v.  Neil,  1  McLe.in,  540. 

*  Sherlock  v.  Ailing,  44  Ind.  184.  "  Maguire  v.  Middlesex  R.  Co.,  115  Mass. 

239. 


POINTS    OF    EVIDENCE.  557 


Declarations  —  Conduct  of  other  Passengers. 


times  by  other  agents  of  the  company,  —  as,  that  conductors  had  been  negligent 
in  calling  out  names  of  stations.' 

(3.)  Bes  Gestae.  — (a.)  Declarations  of  the  Plaintiff.  — The  representations  made 
by  a  sick  or  wounded  man  as  to  the  nature,  symptoms,  and  effects  of  the  trouble 
under  which  he  is  laboring  at  the  time,  are  received  as  original  evidence.-  They 
are  of  greater  weight  when  made  to  a  medical  attendant,  but  they  are  not  rejected 
when  made  to  any  person.'  A  reasonable  and  just  qualification  of  this  rule  is 
that  the  statements  must  have  been  made  under  circumstances  freeing  them 
from  the  suspicion  of  having  been  spoken  with  reference  to  future  litigation,  and 
giving  them  the  character  of  res  gestce.*  But  a  party  will  not  be  permitted  to 
prove  what  he  himself  stated  to  his  physician,  not  in  regard  to  the  character  and 
manifestations  of  his  malady,  but  in  regard  to  its  specific  cause,  when  that  is 
one  of  the  issues  before  the  jury.*  When  the  statements  were  made  to  the  phy- 
sician some  weeks  after  the  injury,  it  was  held  that  the  length  of  time  which  had 
elapsed,  though  it  would  not  warrant  the  rejection  of  the  evidence,  was  a  proper 
<;ircumstance  for  the  consideration  of  the  jury.* 

Declarations  of  the  plaintiff  made  at  the  time  of  the  accident,  tending  to 
•explain  its  character,  are  admissible  as  part  of  the  res  gestae;  and  whether  they 
were  real  or  feigned  should  be  determined  by  the  jury,  from  all  the  circum- 
stances of  the  case.'  Declarations  of  a  passenger  who  was  injured  in  a  railway 
accident  while  riding  on  the  platform  of  a  car,  and  the  fact  that  he  was  injured 
through  his  own  fault,  are  admissible  in  evidence  against  him,  though  not  con- 
■clusive.8 

(6.)  Conduct  of  the  Other  Passengers.  —  In  an  action  for  damages  for  injuries 
received  in  a  railway  collision,  where  there  is  a  question  as  to  the  negligence  of 
the  plaintiff,  evidence  may  be  given  of  the  conduct  and  exclamations  of  other 
passengers,  in  order  to  show  how  the  circumstances  of  danger  impressed  every 
one,  and  to  vindicate  the  plaintiff  from  the  charge  of  rash  conduct  and  impru- 
dence from  undue  alarm.  Such  general  conduct,  given  with  the  exclamations 
involuntarily  made  by  the  passengers  in  consequence  of  the  appearances  of 
imminent  peril,  may  be  regarded  as  a  part  of  the  res  gestae  for  this  purposes 
Kemarks  made  by  other  passengers  in  rescuing  the  plaintiff  from  an  attack  of  the 
•carrier's  servant  are  admissible  as  part  of  the  res  gestae.^"  It  is  allowable  to 
prove  in  mitigation  of  damages,  for  the  purpose  of  explaining  the  reason  why  a 
brakeman  was  armed  with  a  billet  of  wood,  with  which  a  passenger  was  struck, 
that  in  that  locality  the  train  had  been  boarded  with  roughs  and  confidence-men, 
■who  had  attacked  the  brakeman." 

»  Southern R.  Co.  v.  Kendrick,40  Miss.  374.  ■•  Illinois  etc.  R.  Co.  v.  Sutton,  42  111.  438. 

»  Brown  v.  Hannibal  etc.  R.  Co.,  66  Mo.  ^  Ibid. 

588,  599.  *  Murphy  v.  New    York   etc.  R.  Co.,  66 

3  Perkins  v.  Concord  R.  Co.,  44  N.  H.  2'23  Barb.  12.5. 

(citing  1  Greenl.  on  Ev.,  §  101 ;  1  Ph.  on  Ev.  '  Frink  v.  Coe,  4  G.  Greene,  555. 

191;  Aveson  v.  Kennaird,  6  East,  188;  Bacon  8  Zemp  v.  Wilmington  etc.  R.  Co.,  9  Rich. 

V.  Charlton,  7  Cush.  581 ;  Howe  v.  Plainfleld,  L.  84. 

41  X.  H.  135).    See  also  Matteson  v.  New  York  »  Galena  etc.  R.  Co.  v.  Fay,  16  IlL  658. 

«tc.  R.  Co.,  62  Barb.  :m ;  The  State  v.  David-  ><>  Sherley  v.  Billings,  8  Bush,  147. 

son,  30  Vt.  377;  Caldwell  v.  Murphy,  11  N.  Y.  "  Chicago  etc.  11.  Co.  v.  Boger,  1  Bradw. 


416;   Murphy  v.  New  York  etc.  R.  Co.,  66       472. 
Barb.  125. 


558  REMEDIES,    PROCEDURE,    AND    DAMAGES. 


Notes. 


(c.)  Conduct  of  the  Defendant. — A  plaintiff  injured  while  on  shipboard  may 
show  that  after  the  injury  he  applied  to  the  master  of  the  ship  for  some  of  his 
men  to  remove  him  into  a  carriage,  and  that  the  master  refused,  saying  that  he 
had  enough  for  his  men  to  do.  Such  evidence  is  material  as  a  part  of  the  trans- 
action, and  also  upon  the  question  of  damages. ' 

(d.)  Statements  of  the  Defendants  Servants.  —  The  rule  as  stated  by  Mr.  Justice 
Story  is,  that  "where  the  acts  of  the  agent  will  bind  the  principal,  there  his 
representations,  declarations,  and  admissions  respecting  the  subject-matter 
will  also  bind  him,  if  made  at  the  same  time,  and  constituting  parts  of  the 
res  gestae.''''  ^  "A  close  attention  to  this  rule,  which  is  of  universal  acceptance," 
says  Mr.  Justice  Strong,  "  will  solve  almost  every  diflQculty." '  The  distinction 
to  be  always  kept  in  mind  is  between  words  spoken  at  the  time  of  the  transac- 
tion, which  may  be  treated  as  verbal  acts  of  the  agent,  and  words  spoken  after- 
wards without  the  authority  of  his  principal,  which  are  merely  in  the  nature  of  a 
narrative  of  a  past  occurrence.  An  act  done  by  an  agent  cannot  be  varied,  qual- 
ified, or  explained,  either  by  his  declarations,  which  amount  to  no  more  than  a 
mere  narrative  of  a  past  occurrence,  or  by  an  isolated  conversation  held  or  an 
isolated  act  done  at  a  later  period.*  "The  reason,"  continues  Mr.  Justice 
Strong,  "  is,  the  agent  to  do  an  act  is  not  authorized  to  narrate  what  he  had 
done,  or  how  he  had  done  it,  and  his  declaration  is  no  part  of  the  res  gestae.'''' '" 
Applying  these  doctrines,  a  conversation  between  the  captain  of  a  steamboat 
and  a  passenger  who  had  been  injured  in  getting  on  his  boat  two  days  and  a  half 
previously,  in  which  the  captain  attributed  it  to  the  carelessness  of  the  servants 
of  the  boat,  is  not  evidence  against  the  owners  of  the  boat,  though  the'  captain 
and  boat  were  still  on  the  voyage  on  which  the  injury  occurred."  In  like  man- 
ner, in  an  action  for  loss  of  baggage,  the  admissions  made  by  the  conductor, 
baggage-master,  or  station-master,  in  answer  to  inquiries  made  on  behalf  of  the 
passenger,  the  next  morning  after  the  loss,  are  no  part  of  the  res  gestae,  and 
inadmissible.'  So,  where  the  plaintiff  was  injured  by  falling  through  an  un- 
covered bridge  of  the  defendant  in  endeavoring  to  get  upon  one  of  the  defend- 
ant's trains,  it  was  held  that  declarations  of  the  conductor  made  after  the  acci- 
dent, that  the  company  had  been  guilty  of  negligence,  were  inadmissible.^  A 
railway  company  can  in  no  event  be  bound  by  the  subsequent  declarations  of 
one  of  its  brakemen  as  to  the  cause  of  a  disaster.*  So,  the  subsequent  declara- 
tions of  a  stage-driver  of  the  defendant  —  not  the  one  who  drove  the  particular 
stage  which  upset  —  that  the  stage  was  top-heavy  and  overloaded,  were  not 
admissible,!"  though  statements  of  the  same  import  made  at  the  time  of  the  acci- 
dent, by  the  driver  in  charge,  were  held  competent."     So,  the  declarations  of  a 

'Hall  V.  Connecticut  River  Steamboat  Ind.  335;  Rathel  r.  Brady,  44  Ind.  412;  Dick- 
Co.,  13  Conn.  319.  inson  v.  Colter,  45  Ind.  445. 

2  Story  on  Ag.,  §  134.  ■■  Packet  Co.  v.  Clough,  supra.  «  Ibid. 

3  Packet  Co.  v.  Clough,  20  Wall.  528,  540.  '  Morse   v.    Connecticut  River  R.  Co.,  6 
■•  Taylor  on  Ev.,  §  541.    See  Stiles  v.  West-  Gray,  450. 

crn  R.  Co.,  8  Mete.  44;  Cooley  t'.  Norton,  4  *  Chicago  etc.  R.  Co.  v.  Fillmore,  57  111. 

(;ush.  93 ;  Corbin  v.  Adams,  6  Cush.  95 ;  Tom-  265. 

linson  V.  Collett,  3   Blackf.  436;    Hynds  v.  »  Michigan  etc.   R.  Co.  v.  Carrow,  73  111. 

Hays,  25  Ind.  31;   Lafayette   etc.   R.  Co.  v.  348;   Mich.  etc.  li.  Co.  t-.  Gougar,  55  111.  503. 

Khman,  30  Ind.  83;  Bennett  v.  Holmes,  32  '"  Rlaury  r.  Talm.ige,'2  .McLean,  157 

Ind.  108;  Bellefontaine  It.  Co.  v.  Hunter,  33  "  Stokes  r.  Saltduslall,  ante,  p.  183. 


POINTS    OF    EVIDENCE.  559 


Experts. 

brakeman  concerning  the  cause  of  the  inflicting  of  an  injury  upon  the  passenger, 
made  on  the  same  night  of  the  injury,  but  afterwards,  were  not  admissible. ^ 

But  this  principle  may  not  be  of  strict  application  where  the  agent  making 
the  statements  or  admissions  is  the  manager  of  the  company,  so  that  he  may 
be  deemed  for  certain  purposes  its  vice-principal,  or  even  the  company  itself. 
Thus,  where  a  passenger,  who  had  been  assaulted  and  put  off  a  street-car  by  its 
conductor,  went  to  the  superintendent  of  the  company  to  complain  about  it, 
and  the  latter  told  him  to  "hush  up,"  that  he  had  directed  the  drivers  to  throw 
him  out  of  the  cars  for  the  reason  that  he  did  not  pay,  this  declaration  was 
held  competent  evidence.''  But  the  soundness  of  this  case  cannot  be  conceded. 
In  Louisiana,  the  declarations  of  the  superintendent  of  a  railway  company,  made 
in  conversation  with  a  witness  after  an  accident  in  which  the  plaintiff,  a  passen- 
ger, was  injured,  were  held  not  admissible,  because  not  binding  upon  the  com- 
pany ;  the  court  saying  that  no  one  but  a  board  of  directors  had  power  to  make 
admissions  in  regard  to  the  controversy,  which  would  bind  the  company,  —  that 
no  ordinary  agent  of  the  company  would  possess  that  power  unless  it  had  been 
expressly  delegated  to  him.^  Where  the  accident  was  caused  by  the  giving  way 
of  an  embankment  of  a  railway,  and  it  became  matei'ial  to  prove  the  condition 
of  the  embankment,  declarations  made  by  the  engineer  who  constructed  it,  at 
the  time  when  he  constructed  it,  were  held  admissible.* 

(4.)  Testimony  of  Expert  Witnesses.  —  It  is  not  necessary  that  a  physician 
should  be  a  graduate  of  a  medical  college,  or  have  a  license  from  some  medical 
board,  in  order  to  be  qualified  to  testify  as  an  expert  in  relation  to  the  extent  of 
an  injury  which  a  passenger  has  received  in  a  railway  collision.  One  who  with- 
out these  qualifications  had  attended  a  course  of  lectures,  and  studied  the  science 
of  medicine  three  years  before  he  commenced  to  practice,  was  held  competent.* 
The  proper  mode  of  inquiry  in  examining  an  expert  witness  is  to  ask  his 
opinion  upon  a  hypothetical  state  of  facts  such  as  appears  from  the  evidence ;  * 
and  the  admission  of  the  answer  of  a  medical  expert  to  a  supposititious  statement 
which  has  been  made  to  him,  illustrative  of  the  case  on  trial,  affords  no  ground 
of  exception.'  The  rule  being  that  the  injured  passenger  is  entitled  to  recover 
damages  for  prospective  suffering  and  loss  occasioned  by  the  injury,^  it  is 
obviously  competent  for  him  to  prove  by  the  testimony  of  medical  expats  how 
long  the  injury  which  the  accident  inflicted  on  him  will  be  likely  to  continue." 
Where  the  inquiry  is  as  to  the  extent  and  character  of  the  injuries  received  by 
the  plaintiff,  a  physician  may  give  his  testimony  as  to  the  cause  of  the  injury 
with  which,  according  to  the  testimony,  the  plaintiff  is  afllicted ;  but  he  must 
state  the  facts  upon  which  his  opinion  is  based.'"  In  an  action  for  negligently 
steering  a  ship,  whereby  it  was  wrecked  and  the  plaintiff  lost  her  passage,  it 

>  Pittsburgh  etc.  R.  Co.  v.  Theobold,  51  •  Spear  v.  Richardson,  37  N.  H.  as. 

Ind.  246.  '  Perkins  v.  Concord  K.  Co.  44  N.  H.  223. 

2  Malecek  v.  Tower  Grove  etc.  R.  Co.,  57  ^  Jnfra,  §  19. 

Mo.  17.  *  Taylor  v.  Grand  Trunk  R.  Co.,  48  N.  H. 

^  Hill  V.  New  Orleans  etc.  R.  Co.,  11  La.  304;  Toledo  etc.  U.  Co.  v.  Baddely,  54  111.  19;. 

An.  292.  Matleson  v.  New  York  etc.  R.  Co.,  62  Barb. 

*  Brehm  v.  Great  Western  R.  Co.,  34  Barb.  364. 
256.  '"  Ibid.    See  Jefferson  Ins.  Co.  v.  Cotheal> 

5  New  Orleans  etc.  R.  Co.  v.  Allbritton,  88  7  Wend.  78;  1  Cow.  &  Hill's  Notes,  761-763. 
Miss.  242. 


560  REMEDIES,    PROCEDURE,    AND     DAMAGES. 


Notes. 


was  competent  to  call  experienced  nautical  men  and  ask  them  whether,  in  their 
judgment,  particular  facts  which  had  been  proved  amounted  to  gross  negli- 
gence.^  Evidence  of  a  conductor  as  to  whether  guard-chains  put  on  a  railway 
car  would  have  prevented  the  accident  was  held  not  admissible,  but  its  admis- 
sion was,  under  the  circumstances,  no  ground  of  error .^  An  experienced  railroad 
man,  who  has  made  the  management  of  cars,  engines,  etc.,  his  business  for 
years,  is  as  fairly  an  expert  as  one  skilled  in  any  other  art,  and  his  evidence  is 
■entitled  to  stand  on  the  same  footing.  But  an  explanation  given  by  such  a 
witness  as  to  the  meaning  of  a  notice  that  "Passengers  must  not  stand  on  the 
platform"  is  not  admissible:  the  words  stand  for  themselves.' 

(5.)  Opinions  of  Kon-Expert  Witnesses.  —  There  are  many  cases  where  the 
opinions  of  non-expert  witnesses  are  admissible  as  to  questions  which  are  not 
matters  of  science.  The  driver  of  a  stage-coach  which  broke  down  may  state 
whether  the  coach  was  safe  and  in  good  condition,  and,  if  not,  what  were  its 
defects.*  A  witness  who  had  ridden  in  a  railway  train  with  a  party  composed  of 
adults  and  children,  during  a  portion  of  two  days,  was  permitted  to  express  his 
opinion,  formed  from  his  observation  of  their  demeanor,  dress,  conversation,  and 
general  appearance,  that  they  were  of  one  family  and  of  German  nationality.^ 
The  opinion  of  a  witness  as  to  whether  a  certain  place  on  a  steamboat  is  mani- 
festly, to  the  discernment  of  passengers  of  common  understanding,  an  inappro- 
priate place  for  passengers  to  be  in,  is  not  admissible.^  The  opinion  of  a  wit- 
ness as  to  whether  or  not  "  the  plaintiff  would  likely  have  received  the  injury  he 
did  if  his  arm  and  elbow  had  been  inside  the  car,"  is  inadmissible.'  An  opinion 
of  a  witness  as  to  the  length  of  time  the  passenger  who  was  injured  stood  on  the 
platform  has  been  held  not  admissible,  if  given  as  an  opinion ;  otherwise  if  he 
stated  it  as  a  fact,  from  his  presence  there  immediately  before  and  immediately 
after  the  collision.*  An  objection  to  the  statement  of  a  witness,  taken  in  general 
terms,  will  not  be  sufficient  to  save,  on  appeal,  a  question  of  its  competency  on  the 
ground  that  it  was  a  statement  of  a  matter  of  opinion ;  the  objection  must  be 
specifically  made.^  There  is  nothing  in  the  question  as  to  what  caused  a  railway 
train  to  run  off  the  track  on  the  concave  side  of  the  curve  which  calls  for  an 
•explanation  by  an  expert  witness ;  and  a  good  architect  and  mechanic  who  has 
■examined  the  scene  of  the  accident  is  not  incompetent,  by  reason  of  not  being 
an  expert  raili'oad  man,  to  give  his  opinion  on  that  subject.'" 

(6.)  Other  Matters.  —  Parol  eAidence  is  admissible  to  show  a  rule  of  the 
defendant,  a  railway  company,  that  passengers  are  not  to  be  upon  the  platform 
while  the  train  is  in  motion.''  Admitting  useless  and  idle  testimony  —  as,  that  it 
was  unsafe  to  drive  six  horses  —  is  no  ground  for  a  new  trial,  unless  it  be 
clearly  shown  that  it  misled  the  jury  or  might  have  done  so.'-  A  stage  proprie- 
tor, defending  an  action  brought  by  a  passenger,  may  prove  a  general  custom  as 
to  the  number  of  passengers  carried  in  a  stage  of  the  same  size  as  the  one  in 

1  Malton  V.  Nesbit,  1  Car.  &  P.  70.  '  Winters  v.  Hannibal  etc.  R.  Co.,  39  Mo. 

2  BLxby  V.  Monti^elier  etc.  R.  Co.,  49  Vt.        468. 

123.  8  Macon  etc.  R.  Co.  v.  Johnson,  38  Ga.  409. 

3  Macon  etc.  R.  Co.  v.  Johnson,  38  Ga.  409.  »  Walker  v.  Erie  R.  Co.,  63  Barb.  260. 

<  Frink  r.  Potter,  IT  111.  406.  i"  Murphy  v.  \ew  York  etc.  R.  Co.,  66  Barb. 

6  Kansas  Pacific  R.  Co.  v.  Miller,  2  Col.  442.  125. 

6  Simmons  r.  Xew  Bedford  etc.  Steamboat  "  Yonge  v.  Kinney,  28  Ga.  111. 

Co.,  97  Mass.  362.  12  Taylor  v.  Day,  16  Vt.  566. 


POINTS    OF    EVIDENCE.  561 


Various  Matters. 


question,  but  he  cannot  prove  that  it  was  the  custom  on  his  own  route  to  carry 
that  number;  for  he  cannot  make  a  custom,  and  then  appeal  to  it  in  justification 
of  his  own  act.'  Where  the  injury  complained  of  was  received  in  a  railroad  acci- 
dent, it  has  been  held  incompetent  to  admit  testimony  as  to  the  condition  of  the 
road  at  a  point  a  mile  and  a  half  distant  from  the  accident,  or  that  new  ties  were 
subsequently  put  in  in  the  neighborhood  of  the  accident.^  But  where  the  judge 
who  tried  the  case  admitted  evidence  showing  the  general  bad  state  of  the 
defendant's  railway  track  for  several  miles  distant  from  the  place  of  the  accident, 
as  one  of  the  causes  probably  contributing  to  the  accident,  the  Supreme  Court 
refused  to  set  aside  the  verdict.'  It  has  been  held  in  New  York  that  where  the 
condition  of  the  ties  near  to  where  the  cars  ran  off  the  track  could  not  be  ascer- 
tained, it  was  competent  to  show  the  condition  of  those  near  to  it;  thus  laying 
the  foundation  for  the  inference  that  if  the  ties  were  damaged  or  decayed  in  the 
Immediate  vicinity  of  the  accident,  they  would  have  been  so  at  the  place  where 
the  cars  ran  off  the  track.*  What  evidence  is  sufficient  to  show  that  the  defend- 
ants were  common  carriers  at  the  time  of  the  accident,  and  had  undertaken  to 
transport  the  plaintiff  over  their  route,  has  been  ruled  at  some  length  in  a  Ver- 
mont case.5  There  is  no  objection  to  the  plaintiff  exposing  the  injured  limb  to 
the  surgeon  called  upon  to  describe  the  injury  before  the  jury.^  Where  the 
action  was  for  an  injury  received  by  a  passenger  while  riding  on  the  defendant's 
train,  by  a  collision  with  another  train,  evidence  of  the  habits  of  the  conductor 
of  the  other  train  was  held  competent.  If  he  was  addicted  to  intoxication, 
this  would  raise  a  presumption  of  negligence.'  Where  the  claim  of  the  plain- 
tiff is  that  the  injury  occurred  in  consequence  of  the  train  not  stopping  a  suffi- 
cient time  at  the  station,  it  is  competent  for  the  plaintiff  to  show  the  usual  and 
customary  period  of  stopping  at  that  place.*  To  corroborate  the  testimony  of 
the  conductor  as  to  the  time  of  the  arrival  of  his  train  at  a  station,  it  is  com- 
petent to  show  that  he  made  a  contemporaneous  memorandum,  in  compli- 
ance with  a  regulation  requiring  it ;  and  the  time-table  regulating  the  running, 
stoppages,  etc.,  of  such  train  may  be  proved.'  So  may  regulations  of  the  cor- 
poration and  the  custom  of  its  agents  in  respect  of  their  giving  notice  to  pas- 
sengers of  the  necessity  of  their  changing  cars  in  order  to  reach  a  given  station.'" 
Where  the  question  was  as  to  the  character  of  a  stream,  a  railway  bridge  over 
which  had  been  destroyed  by  a  flood,  and  whether  the  railway  company  was  not 
negligent  in  not  foreseeing  and  providing  against  such  an  accident,  it  was  held 
that  evidence  of  floods  subsequent  to  that  which  caused  the  injury  was  improp- 
erly received."  Wliere  a  railway  company  was  sued  for  the  act  of  its  conductor 
in  expelling  the  plaintiff  from  one  of  its  trains,  a  witness  was  allowed  to  give  a 

'  Maury  v.  Talmadge,  2  McLean,  157.'  '  Pennsylvania  R.  Co.  v.  Books,  67  Pa.  St. 

2  Reed  V.  New  York  etc.  R.  Co.,  45  N.   y.  :«9.    On  the  question  whether  intoxication 

574.  i^i  evidence  of  negligence,  sec  1  Thomp.  on 

■'  Holyoke  v.  Grand  Trunk  R.  Co., 48  N.  H.  Neg  ,  pp.  388,  430;  2  id.  1174,  1203. 

541.  "  Fuller   v.  Naugatuck  R.  Co.,  21  Conn. 

*  Murphy  v.  New  York  etc.  R.  Co., 6«  l?aib.  r>ri'. 

125.  ^  Barker  v.  New  York  etc.  R.  Co.,  24  N.  Y. 

*  Bixby  V.  Montpelier  etc.  R.  Co.,  4;>  Vt.       ."iOn. 

123.  '"  Ibid. 

6  Mulhado  v.  Brooklyn  City  R.  Co.,  30  N.  "  Kansas  Pacific  R.  Co.  v.  Miller,  2  Col.  442. 

Y.  370. 

36 


562  REMEDIES,    PROCEDURE,    AN©    DAMAGES. 


Notes. 


conversation  -which  he  heard  behind  him  on  the  train,  supposed  to  be  between 
the  conductor  and  the  plaintiff,  leaving  other  witnesses  to  identify  the  persons 
between  whom  it  took  place.* 

§  17.  Province  of  Court  and  Jury.'  —  Whether  the  carrier  or  his  servant 
has  been  negligent,  or  whether  the  passenger  was  guilty  of  negligence  con- 
tributing to  the  injury  on  the  other  hand,  will  generally  be  a  question  for  the 
jury,'  though  in  the  view  of  some  courts  it  is  a  question  for  the  court  where 
there  is  no  conflict  as  to  the  evidence.*  In  Maryland  it  is  held  that  where  the 
injury  arose  from  a  known  violation  of  the  rules  of  the  carrier  by  the  passenger, 
the  question  of  negligence  is  a  question  for  the  court ;  and  in  such  a  case  there 
can  be  no  recovery.*  The  judge  may  decide  the  case  by  peremptory  instructions, 
or  by  directing  a  nonsuit,  according  to  the  practice  of  the  court,  where,  assuming 
all  the  evidence  which  works  in  favor  of  the  plaintiff  to  be  true,  no  fair-minded 
man  could  draw  from  such  evidence  the  inference  that  the  defendant  has  been 
guilty  of  a  want  of  that  degree  of  care  which  he  was  bound  to  exercise  under 
the  circumstances.  More  broadly,  he  so  decides  where  there  has  been  no  faUure 
of  duty  on  the  part  of  the  defendant,  —  as,  where  the  accident  arose  from  some- 
thing which  the  carrier  was  not  bound  to  anticipate  or  guard  against.^  But  the 
case  must  go  to  the  jury  — 

1.  Where  facts  which,  if  true,  would  constitute  "evidence  of  negligence'* 
are  controverted.'  To  illustrate :  In  Maryland,  if  it  appear  that  the  plaintiff  was 
injured  in  consequence  of  having  voluntarily  put  his  arm  out  of  the  window 
of  a  railway  coach,  he  cannot  recover.  Yet  if  there  is  a  conflict  of  testimony 
as  to  how  his  arm  came  to  be  thus  exposed,  the  case  must  go  to  the  jury.^ 

2.  Where,  although  the  facts  are  not  controverted,  fair-minded  men  might 
differ  as  to  whether  the  inference  of  negligence  should  be  drawn  from  them ; '  In 
other  words,  where  the  facts  do  not  amount  to  what  the  books  term  "evidence 

»  Indianapolis  etc.  R.  Co.  v.  Anthony,  43  Park  R.  Co.,  7  Robt.  616;  Biles  v.  Holmes,  11 

Ind.  183.  Ired.  L.  16;  Dascomb  v.  Buffalo  etc.  R.  Co., 

s  This  question,  in  its  relation  to  the  gen-  27  Barb.  221;  Dublin  etc.  R.  Co.  v.  Slattery, 

eral  law  of  negligence,  is  considered  more  3  App.  Cas.  1155, 1201,  per  Lord  Blackburn, 

at  length  in  2  Thomp.  on  Neg.,  pp.  1235-1240.  ^  Baltimore  R.  Co.  v.  Wilkinson,  30  Md. 

3  Allender  v.  Chicago  etc.  R.  Co.,  37  Iowa,  224,  232. 

264 ;  Zemp  v.  Wilmington  etc.  R.  Co.,  9  Rich.  *  Daniel  v.  Metropolitan  R.  Co.,  L.  R.  6  H. 

L.  84;  Memphis  etc.  R.  Co.  v.  Whitfield,  44  L.  45. 

Miss.  467;  Crissey  v.  Hestonville  R.  Co.,  75  '  Saltonstall  v.  Stockton,  1  Taney's  Dec. 

Pa.  St.  83;  Sullivan  v.  Phila.  etc.  R.  Co.,  30  11;  Pittsburgh  etc.  R.  Co.  v.  Andrews,  39  Md. 

Pa.  St.  234;  Thatcher  v.  Great  Western  R.  329;  Chicago  City  R.  Co.  v.  Young,  62  lU.  238; 

Co.,  4  Upper  Canada  C.  P.  543 ;  Simmons  v.  Bernhardt  v.  Rensselaer  etc.  R.  Co.,  32  Barb. 

Xew  Bedford  etc.  Steamboat  Co.,  97  Mass,  166. 

361;  Brehmv.  Great  Western  R.  Co.,  34  Barb.  s  Pittsburgh  etc.  R.  Co.  v.  Andrews,  39 

256.  Md.  329. 

<  Halpin  v.  Third  Avenue  R.  Co.,  8  Jones  »  Gaynor  v.  Old  Colony  etc.  R.  Co.,  100 

&  Sp.  175.   See  also  Gagg  v.  Vetter,  41  Ind.  228,  Mass.  208 ;  Paterson  v.  Wallace,  1  Macq.  H.  L. 

254;  Louisville  etc.  R.  Co.  v.  Mui-phy,  9  Bush,  Cas.  748;  Johnson  v.  Hudson  etc.  R.  Co.,  20 

.r22;  Costello  v.  Landwehr,  28  Wis.  522,  629;  N.  Y.  65;  Phila.  etc.  R.  Co.  v.  Spearen,  47  Pa. 

Grigsby  V.  Chappel,  5Kich.  L.  446;  Pittsburgh  St.  300;  Mangam  v.  Brooklyn  etc.  R.  Co.,  33 

etc.  K.  Co.  V.  Evans,  53  Pa.  St.  250;  Flemming  N.  Y.  455;  West  Chester  etc.  R.  Co.  v.  M^El- 

r.  Western  Pacific  R.  Co.,  49  Cal.  253;  Van  wee,  67  Pa.  St.  311;  Seabrook  v.  Hecker,  2 

Lien  V.  Scoville  Man.  Co.,  4  Daly,  554;  Foot  Robt.  291 ;  Haycroft  v.  Lake  Shore  etc.  R.  Co., 

r.  Wiswall,  14  Johns.  304;  Thrings  v.  Central  64  N.  Y.  636 


PROVINCE  OF  COURT  AND  JURY.  563 


Demurrer  to  Evidence. 


of  negligence."  And  where  the  court  directs  a  verdict  for  the  defendant,  the 
plaintiff  is  entitled  to  have  every  thing  on  which  his  right  to  recover  depends, 
and  which  the  proof  tended  to  establish,  regarded  as  proved. i 

3.  Where,  at  the  same  time,  the  facts  are  in  dispute,  and  the  inferences  which 
fair-minded  men  would  draw  from  them  are  doubtful.^  More  briefly,  the  ques- 
tion of  negligence  is  said  to  be  for  the  jury  when  there  is  a  substantial  doubt  as 
to  the  facts,  or  as  to  the  inferences  to  be  drawn  from  them ;  ^  and  it  is  for  the 
court  only  where  the  facts  are  undisputed  and  the  inference  of  negligence  is 
clear.*  The  foregoing  doctrines  apply  in  favor  of  the  plaintiff  as  well  as  in 
■favor  of  the  defendant;  so  that  where  the  court  can  see  from  the  undisputed 
evidence  that  the  defendant  was  guilty  of  negligence,  it  will  set  aside  a  verdict 
for  the  defendant  and  award  a  venire  de  novo.^ 

The  following  matters  have  been  held  questions  for  the  jury:  Whether  a  rail- 
way company  has  been  guilty  of  negligence  in  not  ascertaining  the  utility  of  the 
latest  improvements  which  have  been  devised  for  the  protection  of  passengers, 
and  in  not  adopting  them.^  Whether  the  act  which  occasioned  the  injury  was 
wilful  and  malicious,  in  such  a  sense  as  to  be  beyond  the  scope  of  the  servant's 
authority,  or  whether  it  was  mistakenly  conceived  to  be  a  necessary  use  of  force 
to  effect  a  removal  of  a  passenger  from  the  train.'  Whether  a  passenger  injured 
while  standing  on  the  platform  knew  that  it  was  a  prohibited  place,  and,  if  so, 
whether  under  the  circumstances  his  act  so  contributed  to  the  injury  as  to 
exonerate  the  company .^  As  already  seen,  a  presumption  of  negligence  arises 
against  the  carrier  from  the  happening  of  the  accident  to  the  passenger  from  a 
failure,  during  the  transit,  of  some  of  the  carrier's  means  of  transportation.* 
Whether  the  circumstances  exist  which  repel  this  pi'esumption  is  a  question  of 
fact  for  the  jury,  to  be  determined  from  all  the  evidence  in  the  case.'" 

§  18.  Demurrer  to  Evidence.  —  A  demurrer  by  one  party  to  the  evidence 
admits  every  thing  which  the  evidence  tends  to  prove  in  favor  of  the  other  party : 
and  the  reason  is  that  the  judge  is  not  permitted  either  to  deterraiue  contro- 
verted facts,  or  to  say  what  inferences  of  fact  shall  be  drawn  from  the  facts 
proved.    Its  sole  object  is  so  to  present  the  case  to  the  judge  that  he  shall  deter- 

1  Stone  V.  Chicago  etc.  R.  Co.,  47  Iowa,  82;  »  Crissey  v.  Hestonville  etc.  R.  Co.,  75  Pa. 
s.  c.  10  Ch.  Leg.  N.  78;  6  Reporter,  489;  Mc-  St.  83;  Barton  v.  St.  Louis  etc.  R.  Co.,  52  Mo. 
Clenaghan  v.  Brock,  5  Rich.  L.  17.  253. 

2  Nichols  V.  Sixth  Avenue  R.  Co.,  38  N.  *  Dickens  v.  New  York  etc.  R.  Co.,  1  Abb. 
Y.  131.    See  also  Railroad  Co.  v.  Stout,  17  App.  Dec.  504. 

Wall.  657;  Fernandez  v.  Sacramento  City  R.  •  Derwort  v.  Loomer,  21  Conn.  245;  s.  c.  1 

Co.,  4  Cent.  L.  J.  82;  Detroit  etc.  R.  Co.  v.  Am.  L.Reg.  479. 

Van  Steinburg,  17  Mich.  99;    The  State  v.  '•  liegeman  v.  Western  R.  Co.,  13  N.  Y.  9, 

Railroad  Co.,  52  N.  H.  529 ;  Gaynor  v.  Old  Col-  ante,  p.  KiO. 

ony  etc.  R.  Co.,  100  Mass.  208, 212 ;  McGrath  v  •  Jackson  v.  Second  Avenue  R.  Co.,  47  N. 

Hudson  River  R.  Co.,  32  Barb.  144;  s.  c.  19  Y.  274. 

How.  Pr.  211;  Bridges  v.  North  London  R.  *<  Zerap  v.  Wilmington  etc.  R.  Co.,  9  Rich. 

Co.,  L.  R.  7  H.  L.  213;  Beers  v.  Housatonic  L.  84. 

R.  Co.,  19  Conn.  .'500;   Vinton  v.  Schwab,  32  "  Ante,  p.  209. 

Vt.  612;  Pennsylvania  Canal  Co.  v.  Bentley,  '«  Sullivan  v.  Philadelphia  R.  Co.,  30  Pii. 

66  Pa.  St.  30,  34;  Wyatt  v.  Citizens'  R.  Co.,  55  St.  234;   Brehm  v.  Great  Western  R.  Co.,  34 

Mo.  485;  Norton  v.  Ittner,  56  Mo.  351;   Stod-  Barb.  256. 

dard  v.  St.   Louis   etc;.    K.  Co.,  65  Mo.  514; 

Jenkins  v.  Little  Miami  R.  Co.,  2  Disney,  49. 


564  REMEDIES,    PROCEDURE,    AND    DAMAGES. 


Notes. 


mine  what  inferences  of  law  shall  be  drawn  from  the  facts  which  the  evidence 
tends  to  prove.  It  is  therefore  in  the  nature  of  a  demurrer  to  a  pleading,  which 
admits  all  the  facts  which  are  well  pleaded  to  be  true ;  or  to  a  special  verdict, 
where,  the  jury  having  found  the  facts,  the  judge  announces  what  conclusions  of 
law  shall  be  drawn  therefrom.  It  is  never  safe,  therefore,  to  demur  to  the  evi- 
dence where  there  is  any  evidence  tending  to  prove  negligence;  for  then  the 
judge  will  accept  this  evidence  as  true,  and  from  it  determine  that  there  was  neg- 
ligence as  a  conclusion  of  law.^  On  overruling  demurrer  to  the  evidence,  the  judge 
cannot  enter  up  a  judgment,  but  must  dii-ect  an  inquiry  of  damages  by  a  jury.^ 

§  19.  All  Damages,  present  and  prospective,  maybe  recovered.  —  An  action 
for  injuries  to  the  person  of  a  passenger  may  be  brought  at  any  time  after  the 
injuries  occur,  within  the  time  fixed  by  the  statute  of  limitations,  and  but  one 
action  can  be  brought  therefor.^*  Such  an  action  is  unlike  that  for  a  continuing 
nuisance,*  or  for  enticing  a  servant  away  where  the  servant  was  apprenticed  for 
a  term  of  years,^  or  for  enticing  a  wife  away,«  or  for  the  continuation  of  false 
imprisonment  after  action  brought,^  or  for  trespass  upon  land.*  In  the  case  of 
actions  for  injuries  to  the  person,  the  cause  of  action  is  founded  on  the  wrong 
and  damage  combined,  and  a  new  action  cannot  be  brought  simply  because  new 
damage  ensues  without  new  wrong ;  while  in  the  other  cases  mentioned,  as  in 
the  case  of  false  imprisonment  after  action  brought,  a  new  action  may  be 
brought  for  all  damage  which  is  sustained  subsequent  to  the  bringing  of  the 
former  suit.  "Where  successive  actions  may  be  brought  for  a  continuous 
wrong,  as  in  the  case  of  a  trespass  upon  land,  the  damages  in  each  suit  are  very 
properly  limited  to  those  sustained  by  the  plaintiff  at  its  commencement ;  but 
for  an  injury  to  the  person,  resulting  from  a  single  act,  a  single  action  only  can 
be  brought,  and  it  therefore  would  be  manifestly  unjust  not  to  take  into  consid- 
eration, upon  the  trial,  the  nature  and  extent  of  the  injury  in  all  its  consequences ; 
since  by  not  so  doing,  the  plaintiff,  in  many  cases,  would  be  deprived  of  the 
larger  portion  of  the  compensation  he  might  justly  claim,  and  the  damages  given 
be  wholly  disproportioned  to  the  injury  sustained.'"  Therefore  the  plaintiff 
in  an  action  for  an  injury  to  his  person  as  a  passenger  may  recover  not  only  the 
damage  he  has  sustained  up  to  the  time  of  bringing  the  suit,  but  also  all  pros- 
pective damages  which  the  evidence  renders  it  reasonably  certain  must  neces- 
sarily result  from  the  injury. i"    And  it  follows  that  where  the  evidence  shows 

1  As  to  the  practice  under  a  demurrer  to  ^  Whitney  v.  Clarendon,  18  Vt.  252;  Ward 

the  evidence,  see  Wright  v.  Pindar,  Style,  v.  Rich,  1  Vent.  103. 

34;   Copeland  v.  New  England  Ins.  Co.,  23  ^  Whitney  v.  Clarendon,  18  Vt.  252;  Bras- 
Pick.  138;    Young  v.  Black,  7  Cranch,  568;  field  r.  Lee,  1  L.  Raym.  329. 
Fowle  V.  Alexandria,  11  Wheat.  322 ;  Mobile  «  Caldwell  v.  Murphy,  1  Duer,  233,  240. 
etc.  R.  Co.  V.  McArthur,  43  Miss.  180 ;  Fent  v.  »  Ibid. 

Toledo  etc.  R.  Co.,  1  Thomp.  on  Neg.,  p.  136;  lo  Klein  v.  Jewett,  26  N.  J.  Eq.  474;  Mem- 

s.  c.  59  111.  349.  phis  etc.  R.  Co.  v.  Whitfield,  44  Miss.  466 ; 

-  Mobile  etc.  R.  Co.  v.  McArthur,  43  Miss.  Curtiss  v.  Rochester  etc.  R.  Co.,  20  Barb. 

180.  282  (affirmed,  18  N.  Y.  .534) ;  Caldwell  v.  Urn- 

3  Curtiss  r.  Rochester  etc.  R.  Co.,  20  Barb.  phy,  1  Duer,  233   (affirmed,  11  N.  Y.  416); 

282,  292  (affirmed  in  18  N.  Y.  534).  Matteson  v.  New  York  etc.  R.  Co.,  62  Barb. 

*  Hopkins  V.  Atlantic  etc.  R.  Co.,  36N.  H.9.  364;  Holyoke  v.  Grand  Trunk  R.  Co.,  48  N. 

5  "WTiitney  v.  Clarendon,  18  Vt.  252;  Ham-  H.  541 ;  Black  v.  CaiToUton  R.  Co.,  10  La.  An. 

bleton  V.  Veere,  2  Saund.  169.  33;  Frink  v.  Schroyer,  18  111.  416. 


DAMAGES.  5(;5 


Should  not  be  conjectural. 


that  injuries  continued  to  exist  up  to  the  time  of  the  trial,  the  testimony  of  a 
physician  as  to  the  plaintiff's  condition  four  months  after  the  injury  occurred,' 
and  even  after  the  suit  was  instituted,  is  admissible  ;*  and  the  plaintiff  may 
amend  his  declaration  after  suit  brought,  so  as  to  increase  the  amount  of  dam- 
ages claimed.* 

§  20.  Permanent  Injuries  —  Life-Tables.  —  It  is  also  competent  for  the  plain- 
tiff to  show  that  the  injuries  complained  of  are  permanent  in  their  nature, — that 
he  will  probably  not  recover  from  their  effects ;  *  and  when  there  is  such  testi- 
mony, it  is  not  improper  to  introduce  in  evidence  standard  life-tables  to  show 
the  expectancy  of  life  of  one  of  the  age  of  the  injured  party,  as  a  basis  upon 
which  to  estimate  the  amount  of  damages  he  should  recover.* 

§  21.  Damages  should  be  obvious,  and  not  conjectural  or  speculative.^  — 
The  damages  allowed  should  be  such  as  result  directly  from  the  injury  sus- 
tained.' Thus,  it  is  said:  "Damages  produced  by  other  agencies  than  those 
causing  the  injury,  or  even  by  agencies  remotely  connected  with  those  causing 
the  injury,  cannot  be  awarded  as  proximate  or  proper  compensation,  but  only 
where  the  injury  flows  from  the  wrongful  act  as  its  natural  concomitant,  or  as  the 
direct  result  thereof.  Where  speculation  or  conjecture  has  to  be  resorted  to 
for  the  purpose  of  determining  whether  the  injury  results  from  the  wrongful  act 
or  from  some  other  cause,  then  the  rule  of  law  excludes  the  allowance  of  dam- 
ages for  such  injury."  8  Thus,  in  the  case  from  which  we  have  just  quoted, 
it  appeared  that  where  a  train  failed  to  stop  at  a  station  where  a  passenger  was 
waiting  for  it,  to  be  transported  to  another  station,  and  he,  instead  of  hiring  an- 
other conveyance  or  waiting  till  the  next  train  came,  walked  to  his  place  of 
destination,  in  very  cold  weather,  and  on  account  of  the  exposure  became  sick, 
it  was  held  that  his  sickness  and  the  loss  to  him  thereby  occasioned  were  not 
elements  of  the  damages  he  could  recover ;  that  if  his  business  required  it,  he 
might  have  hired  another  conveyance,  and  the  company  would  have  been  liable 
for  such  actual  damages  as  he  could  prove  in  the  way  of  necessarily  increased 
expenses  either  in  waiting  or  procuring  another  vehicle,  and  such  loss  to  his 
business  as  he  might  suffer  on  account  of  the  delay,  but  he  had  no  right  to  inflict 
injury  on  himself  to  enhance  the  amount  of  his  damages.* 

1  Dale  V.  Brooklyn  etc.  R.  Co.,  1  Hun,  146;  the  witnesses."  Pollock,  C.  B.,  in  Wilson  v. 
s.  c.  3  Thomp.  &  C.  686.  NewiJort  Dock  Co.,  4  Hurl.  &  Colt.  2:52 ;  s.  c.  L. 

2  Hopkins  v.  Atlantic  etc.  R.  Co.,  36  N.  H.  R.  1  Excli.  177 ;  12  Jur.  (n.  s.)  233.  See  also 
9.  Blackburn,  J.,  in  Ilobbs  v.  London  etc.  R. 

"McDonald   v.   Chicago    etc.  R.  Co.,   26  Co.,  44  L.  J.  (Q.  B.)  49,53;  s.  c.  L.  R.  10  Q.  B. 

Iowa,  124.  Ill;  23  Week.  Rep.  520;  32  I,.  T.  (N.  8.)  352. 

■i  Matteson  v.  New  York  etc.  R.  Co.,  62  "The  right  to  damages  is  a  question  of  law 

Barb.  384;  Pittsburgh  etc.  R.  Co.  D.Andrews,  for  the  court.    The  facts  are  for  the  jury." 

39  Md.  329.  Tarbell,  J.,  in  Memphis  etc.  R.  Co.  v.  Whit- 

6  McDonald   v.    Chicago   etc.    R.    Co.,  26  field,  44  Miss.  466,  499. 

Iowa,  124;  The  D.  S.  Gregory,  2  Ben.  226  '  Baltimore  etc.  R.  Co.  v.  Blocher,  27  Md. 

(affirmed  in  9  Wall.  513).  277;  Montgomery  etc.  R.  Co.  v.  Boring,  51 

^  "  We    apprehend,  when  the  facts    are  Ga.  582. 

known,  it  is  the  province  of  the  court  to  say  *  Indianapolis  etc.  R.  Co.  v.  Birney,  71  111. 

for  what  matters  damages  are  to  be  given;  391. 

but  the  amount  of  damages  is  a  question  for  »  Indianapolis  etc.  R.  Co.  v.  Birney,  71  111. 

the  jury  quite  as  much  as  the  credit  due  to  391. 


5(56  REMEDIES),    PKOCEDUKK,    AND     DAMAGES. 


Notes. 


In  another  case,  the  defendant,  a  common  carrier  of  passengers,  contracted  to 
take  the  plaintiff,  a  young  lady,  from  a  railroad  depot  to  her  home,  but,  before 
arriving  there,  set  her  down  in  the  city,  a  mile  from  her  residence,  on  the  side- 
walk of  a  frequented  street  on  which  ran  a  line  of  street  cars  which  passed 
within  a  square  of  her  house.  It  was  on  a  dry  but  very  cold  winter  day.  The 
plaintiff  was  of  a  delicate  constitution,  though  not  sick  at  the  time.  Being 
warmly  clad,  she  walked  home  in  company  with  a  friend,  but  in  doing  so  con- 
tracted a  cold  which  permanently  injured  her  health.  It  was  held  that  the  injury 
was  too  remote,  and  the  contributory  negligence  of  the  plaintiff  too  direct,  to 
warrant  a  recovery  for  her  sufferings,  loss  of  emplojonent,  and  permanent  injury 
to  health;  that  her  recovery  must  be  limited  to  the  reasonable  cost  of  a  convey- 
ance home,  and  her  expenses  In  endeavoring  to  avoid  exposure  to  the  cold.' 

In  a  recent  English  case,'^  the  rule  seems  to  have  been  applied  with  unnecessary 
ri«'or.    The  evidence  showed  that,  through  the  negligence  of  the  servants  of  the 
defendant,  a  railway  company,  the  plaintiffs  (husband  and  wife)  and  their  two 
children  were  taken  to  the  wrong  station,  where   they  could  obtain  neither 
accommodation  nor  a  conveyance;   consequently  they  were   obliged  to  walk 
several  miles,  in  the  middle  of  a  wet  night.    The  female  plaintiff  caught  cold 
and  was  sick  for  some  time,  and  unable  to  assist  her  husband  in  his  business. 
The   sickness   made  medical  attendance   and  other  expenses  necessary.    The 
plaintiffs  recovered  £10  for  the  personal   inconvenience  suffered  under  these 
circumstances,  and  £20  in  respect  of  the  wife's  illness.     On  appeal,  it  was  held 
that  the  plaintiffs  could  not  recover  damages  for  the  illness  of  the  wife  or  the 
losses  in  consequence,  such  damage  being  too  remote,  and  not  flowing  imme- 
diately from  the  cause  of  action.    Cockburx,  C.  J.,  thus  expressed  the  difficulty  he 
had  in  coming  to  a  decision  and  laying  down  a  rule  as  to  the  measure  of  damages 
in  actions  of  this  kind :  "  The  nearest  approach  to  a  definition,  it  seems  to  me,  is, 
that  to  entitle  a  person  to  damages  for  a  breach  of  contract  the  injury  for 
which  compensation  is  asked  should  be  one  that  may  be  taken  to  have  been  in 
the  contemplation  of  the  parties  as  fairly  the  consequence  that  might  arise  from 
the  breach,  or  as  fairly  flowing  from  it,  and  not  merely  connected  through  a 
series  of  intermediate  causes  between  the  breach  and  the  injury  complained 
of."     Mellor,  J.,  in  the  same  case,  stated  the  rule  thus:  "The  damage  which, 
as  a  matter  of  law,  must  be  construed  as  a  measure  of  damages  is  such  as  arises 
naturally  and  directly  from  the  breach  of  contract,  or  such  as  both  parties  might 
reasonably  have  expected  to  result  from  a  breach  of  the  contract."     Cockburn, 
C.  J.,  also  said:  "As  to  walking  home,  it  must  be  in  the  contemplation  of  the 
parties  that  passengers  put  down  at  a  wrong  place  will  have  to  get  home.     If 
there  are  means  of  doing  so  they  must  avail  themselves  of  them,  and  the  com- 
pany are  responsible  for  the  cost  incurred;  if  there  are  no  such  means,  the 
company  are  responsible,  and  must  compensate  for  the  inconvenience  which  the 
absence  of  means  causes.    But  in  the  case  of  the  cold  caught,  that  cannot  stand 
on  the  same  footing."     He  then  gives  the  two  following  hypothetical  cases, 
which  he  claimed  to  be  analogous  to  the  case  at  bar:  "The  party  aggrieved 
would  in  like  manner  be  entitled  to  recover  as  where  in  walking  home  in  the 

1  Francis  v.  St.  Louis  Transfer  Co.,  5  Mo.  -  Hobbs  v.  London  etc.  R.  Co.,  44  L.  J.  (Q. 

App.  7.  B.)  49 ;  s.  c.  23  Week.  Rep.  520 ;  32  L.  T.  (Jf.  8.) 

352;  L.  R.  10  Q.  B.  IIL 


DAMAGES.  567 


Should  not  be  conjectural. 


■dark  a  false  step  is  taken  which  results  in  a  fall  and  a  broken  limb.  In  that 
case  the  damage  would  be  too  remote,  not  being  a  consequence  which  could 
reasonably  be  anticipated  to  follow  from  a  breach  of  contract,  as  a  person  might 
walk  many  times  from  Esher  to  Hampton  without  such  an  occurrence.  Or, 
again,  persons  are  entitled  under  such  circumstances  to  take  a  carriage ;  suppose 
that  done,  and  the  carriage  to  be  overturned  and  the  person  to  sustain  a  bodily 
injury,  it  may  be  said  that  if  this  person  had  been  put  down  at  the  right  place 
he  would  not  have  had  to  walk  or  ride,  and  so  could  have  met  with  neither 
accident;  but  still  the  injury  is  too  remote.  That,  I  think,  is  the  case  here;  it 
is  not  the  necessary,  not  even  the  probable,  consequence  of  this  breach  of  contract 
that  personal  injury  should  be  sustained  or  a  cold  caught.  That  cannot  be 
reasonably  expected,  and  so  to  have  been  within  the  contemplation  of  the 
parties;  in  other  words,  too  remote."  The  foregoing  language  would  seem  to 
be  open  to  criticism.  It  may  be  true  that  the  taking  of  a  false  step  resulting 
in  a  broken  limb,  or  a  bodily  injury  from  the  overturning  of  a  carriage  in 
attempting  to  reach  his  destination,  are  not  consequences  which  could  reason- 
al)ly  be  anticipated  to  follow  from  setting  a  passenger  down  at  the  wrong 
station;  but  that  a  female  passenger  might  become  sick,  when  compelled  to 
walk  several  miles  on  a  wet  night,  is  a  consequence  reasonably  to  be  antici- 
pated to  follow  sugh  a  breach  of  the  contract  of  carriage  as  in  this  case,  and  is 
such  as  may  be  taken  to  have  been  in  the  contemplation  of  the  parties  as  fairly 
flowing  from  it.i 

It  must  be  considered  as  in  the  contemplation  of  the  parties  that  if,  in  the 
breach  of  the  contract  of  carriage,  the  passenger  is  placed  in  such  a  position 
that  his  health  is  endangered,  either  by  reason  of  the  nature  of  the  exposure, 
or  on  account  of  his  feebleness  of  body,  his  age,  or  his  being  unacclimated, 
sickness  will  probably  ensue,  causing  damage  to  him.  Thus,  the  defendant,  a 
common  carrier  of  passengers,  contracted  to  carry  the  plaintiff  from  New  York 
City  to  San  Francisco  by  way  of  Nicaragua,  but  in  consequence  of  the  wrecking 
of  the  vessel  which  was  to  carry  him  from  San  Juan  del  Sur,  on  the  Pacific 
coast,  to  San  Francisco,  he  was  detained  for  several  weeks  upon  the  Isthmus  of 
Nicaragua,  where  he  became  sick  with  a  fever  peculiar  to  that  climate  and 
remained  sick  until  long  after  his  arrival  in  New  York  City,  to  which  place  he 
was  obliged  to  return.  Under  these  circumstances,  it  was  held  proper  to  receive 
evidence  as  to  exposure  to  sun  and  rain  while  crossing  the  isthmus,  and  the 
unhealthiness  of  the  climate;  furthermore,  that  damages  should  be  allowed  for 
loss  of  time  by  reason  of  detention  on  the  isthmus,  for  his  expenses  there  and  the 
expenses  of  his  return  to  New  York,  the  time  he  lost  by  reason  of  his  sickness  after 
1k!  returned  home,  and  the  expense  of  such  sickness.^  Again,  where  an  aged 
woman  was  put  off  in  the  night-time,  at  a  station  upon  the  defendant's  road 
which  was  neither  open  nor  lighted  and  where  there  was  no  one  to  give  her 
information  as  to  where  she  might  obtain  shelter,  and  she  wandered  away  from 
the  depot  in  search  of  the  highway,  and  returning,  about  an  hour  afterwards, 
fell  down  a  flight  of  steps  on  the  premises,  it  was  held  —  it  being  assumed 
that  the  absence  of  any  light  at  the  depot,  or  of  any  person  to  give  information, 

I  Compare  Patten  v.  Chicago  etc.  R.  Co.,  ruling  Brlggs  v.  Vanderbilt,  19  Barb.  222,  and 
32  Wis.  .524.  Bonsteel  v.  Vanderbilt,  21  Barb.   26).    Sae 

SV  illiams  v.  Vanderbilt,  2S  N.  Y.  217  (over-       also  Ward  v.  Vanderbilt,  34  How.  Pr.  144. 


568  REMEDIES,    PROCEDURE,    AND     DAMAGES. 


Notes. 


was  negligence  on  the  part  of  the  company  —  that  it  was  proper  to  submit  the 
question  to  the  jury  whether  such  negligence  was  the  proximate  cause  of  the 
injury. ' 

The  refusal  of  the  carrier  to  receive  a  passenger,^  carrying  him  beyond  hi* 
destination,^  detaining  him  unnecessarily  during  his  journey,*  or  carrying  off  a 
person  against  his  will  who  is  legitimately  upon  a  vessel,^  are  all  wrongs  which 
may  be  redressed  by  actions  for  damages  thereby  sustained.  Damages,  it  seems, 
may  be  awarded  for  the  refusal  of  the  carrier  to  further  transport  a  passenger 
after  it  has  come  to  his  knowledge  that  any  other  course  would  result  in  loss 
of  life  of  the  passenger  or  be  hazardous  to  his  safety.  The  novel  case  of 
Pearson  v.  Duane,^  which  we  have  elsewhere  presented  in  full,'  illustrates  this 
point.  The  plaintiff  was  here  persisting  in  a  course  of  "  sheer  madness,"  as  the 
court  teriiied  it,  which  was  checked  by  the  refusal  of  the  defendant  to  convey 
him  further.  It  was  held,  nevertheless,  that  in  such  a  case  the  apprehended  dan- 
ger only  mitigated  the  act ;  that  the  passenger  was  entitled  to  compensation  for 
the  injury  done  him  by  being  put  ou  board  the  return  vessel,  so  far  as  that 
injury  arose  from  the  act  of  the  captain  in  putting  him  there;  but  that  he  was 
not  entitled  to  damages  for  injuries  he  suffered  from  obstructions  which  he 
afterwards  met  with  in  reaching  San  Francisco,  which  injuries  were  not  caused 
by  the  captain's  act,  but  were  due  to  the  fact  that  all  to  whom  he  afterwards 
applied  for  passage  to  that  place  knew  the  power  and  determination  of  the 
authorities  there  and  were  afraid  to  carry  him  back.  The  court  below  having 
awarded  $4,000  damages,  this  judgment  was  modified  by  allowing  but  $50,  with 
directions  that  each  party  should  pay  his  own  costs  on  the  appeal. 

In  an  English  case,^  it  appeared  that  the  plaintiff,  a  person  in  business,  travel- 
ling to  meet  his  customers,  booked  himself  by  the  defendants'  railway  as  a 
passenger  from  London  to  Hull  by  a  train  which  the  defendants  advertised  to 
arrive  at  Hull  the  same  night.  On  reaching  Grimsby,  where  the  defendants' 
line  ended,  it  was  found  that  the  Hull  train  had  left,  and  although  the  plaintiff 
might  have  reached  Hull  that  night  by  taking  a  special  conveyance,  he  remained 
at  Grimsby  and  proceeded  by  train  the  next  morning;  but  he  was  too  late  to 
reach  certain  places  by  the  hour  he  had  previously  appointed  for  meeting  his 
customers,  and  in  consequence  he  was  obliged  to  hire  conveyances  to  see  some 
of  his  customers  elsewhere,  and  was  detained  several  days  waiting  for  the  mar- 
ket-days to  see  others.  It  was  held  that  he  was  only  entitled  to  recover 
damages  to  the  amount  of  his  hotel  expenses  at  Grimsby  and  the  railway  fare 
the  next  day  to  Hull,  and  was  not  entitled  to  recover  for  any  damages  whatever 
occasioned  by  his  not  reaching  the  places  where  he  had  engagements  to  see  his 
customers,  by  the  time  he  might  have  reached  them  if  the  defendants  had  per- 
formed their  contract. 

Evidence  of  loss  sustained  by  the  plaintiff  in  his  business  in  consequence  of  a 
personal  injury  is  proper,  to  aid  the  jury  in  estimating  the  plaintiff's  damages; 

1  Patten  r.  Chicago  etc.  R.  Co.,  32  Wis.  524,  *  Yonge  v.  Pacific  Mail  Steamship  Co.,  1 

*  Heirn  v.  McCaughan,  32  Miss.  17;  The  Cal.  353. 
Zenobia,  1  Abb.  Adm.  80.  6  Stoneseifer  v.  Sheble,  31  Mo.  243. 

3  Porter   v.  Steamboat  New  England,  17  '4  WaD.  605. 

Mo.  290;  The  Canadian,  1  Brown's  Adm.  11;  '  Ante,  p.  17. 

Thompson  v.  New  Orleans  etc.  R.  Co.,  50  ^  Hamlin  v.  Great  Northern  R.  Co.,  26  L. 

Miss.  315.  J.  (Exch.)  20;  s.  c.  1  Hurl.  &  N.  408. 


DAMAGES.  569 


Should  not  be  conjectural. 


and  for  that  purpose  the  nature  of  the  plaintiff's  business,  its  extent,  and  the 
importance  of  his  personal  oversight  and  superintendence  in  conducting  it,  may 
be  shown. 1  Thus,  the  plaintiff,  a  lawyer,  was  struck  by  a  bar  of  iron  which 
projected  from  a  construction-train  passing  the  car  in  which  he  sat.  The  inju- 
ries resulting  from  this  blow  were  of  a  painful  and  permanent  nature,  some  of 
the  important  effects  of  which  would  probably  continue  during  life  and  sensibly 
abridge  the  period  of  the  same.  The  plaintiff  was  in  early  manhood,  engaged  in 
an  extensive  practice,  which  was  impaired  by  his  subsequent  inability  to  give  it 
the  requisite  attention,  and  he  was  afflicted  with  bodily  derangements  that  meas- 
urably unfitted  him  for  the  duties  of  his  profession.  It  was  held  that,  the  object 
of  the  law  being  fairly  to  compensate  a  party  injured  through  the  negligence  of 
another,  the  pecuniary  losses  resulting  from  the  plaintiff 's  inability  to  attend 
to  his  business  formed  a  proper  item  of  damages,  and  that,  under  the  circum- 
stances of  the  case,  the  court  had  no  data  from  which  it  could  say  that  a  verdict 
of  $20,000  for  the  plaintiff  was  too  much.^ 

In  another  case,'  it  was  held  to  be  error  to  instruct  a  jury  that  they  would  be 
justified  in  taking  into  consideration  "the  bodily  pain  and  sufferidg  which  the 
plaintiff  suffered,  or  was  likely  to  suffer,  in  consequence  of  the  neglect  of  the 
defendants ;  "  that  the  instruction  authorized  an  allowance  of  damages  for  future 
pain  which  is  rendered  probable  merely;  that  damages  are  to  be  proved,  and 
none  are  to  be  allowed  except  such  as  are  shown  by  the  proof  to  be  at  least  to 
a  reasonable  degree  certain.  But  it  was  further  held  that  there  would  be  no 
objection  to  the  charge  Avhen  modified  by  the  instruction  "that  future  damages 
could  only  be  awarded  when  it  was  reasonably  certain,  from  the  evidence,  that 
such  damages  would  inevitably  and  necessarily  result  from  the  original  injury." 

Where  the  plaintiff,  a  book-keeper,  in  violation  of  the  agreement  of  the  defend- 
ants, was  detained  at  New  Orleans  and  Panama,  on  his  way  to  California,  an 
unreasonable  length  of  time,  it  was  held  improper  to  charge  that  the  measure 
of  damages  would  be  the  wages  of  a  book-keeper  during  the  period  of  the 
detention,  at  the  then  rate  in  San  Francisco.  It  should  have  been  left  to  the 
jury  to  weigh  the  probabilities  of  his  procuring  employment  in  San  Francisco 
Immediately  upon  his  arrival,  and  of  such  employment  being  continued  dur- 
ing the  entire  period  in  question.*  In  an  action  against  a  carrier  of  pas- 
sengers to  recover  damages  for  a  failure  to  carry  the  plaintiff  within  the 
appointed  time  to  the  place  for  which  he  had  taken  passage,  by  reason  whereof 
he  was  unable  to  perform  his  errand  there  and  was  detained  at  expense,  and  to 
the  injury  of  his  business  at  home,  it  was  held  that  he  must  produce  some  evi- 
dence that  if  he  had  arrived  at  the  appointed  time  he  might  have  done  his 
errand  and  would  have  promptly  returned,  or  that  he  could  not  with  due  effort 
accomplish  his  errand  by  reason  of  his  delay  in  arriving.  Nor  could  the  plain- 
tiff in  such  an  action  recover  his  expenses  and  the  damages  to  his  business 
during  a  sojourn  of  several  days,  without  some  proof  as  to  the  time  when  he 
first  ascertained  that  he  could  not  accomplish  his  errand  and  might  therefore 
return.  The  fact  that  his  errand  was  to  receive  a  loan  of  money  previously 
promised  to  Mm,  and  that,  not  receiving  it,  he  was  without  money  for  the 

1  Lincoln  v.  Saratoga  etc.  R.  Co.,  23  Wend.  ^  Curtis  v.  Rochester  etc.  R.  Co.,  18  N.  Y. 

426.  534  (afflrrning  s.  c.  in  20  Barb.  282). 

*  Walker  v.  Erie  R.  Co.,  63  Barb.  260.  *  Yonge  v.  I'ac.  Mail  Steam.  Co.,  1  Cal.  353. 


570  REMEDIES,    PROCEDURE,    AND     DAMAGES. 


Notes. 


expenses  of  returning  until  he  received  it  from  home,  is  not  sufficient  to  show 
a  necessity  for  delaying  his  return,  if  he  made  no  effort  to  borrow  means 
and  did  not  show  that  there  was  difficulty  in  doing  so.i 

Where  the  conductor  of  the  defendants'  train  unreasonably  ordered  the  plain- 
tiff, a  passenger,  to  leave  the  train,  and  upon  refusal  placed  his  hand  upon  the 
plaintiff 's  shoulder  to  compel  him  to  go,  and  the  plaintiff  rose  from  his  seat  and 
followed  the  conductor  out  of  the  car,  but  in  so  doing  slipped  and  fell  upon  the 
car  steps  and  was  injured,  it  was  held  that  the  injuries  caused  by  the  fall  were 
not  elements  to  be  taken  into  consideration  in  estimating  the  damages  he  might 
recover  for  being  wrongfully  ejected  from  the  train.^ 

In  a  case  ^  where  it  appeared  that  the  plaintiff  contracted  with  the  master  of 
a  vessel  in  a  foreign  port  for  passage  to  this  country,  and  paid  a  part  of  his  pas- 
sage-money in  advance,  but  the  master  failed  to  fulfil  his  contract  and  the 
plaintiff  was  obliged  in  consequence  to  talce  passage  in  another  vessel,  it  was 
held  that  he  was  entitled  to  recover  the  passage-money  paid,  and  the  expenses 
incurred  by^him  in  awaiting  the  sailing  of  another  ship.  So,  the  master  of  a 
schooner  who  had  taken  passage  on  a  steamer  to  rejoin  his  vessel  and  was 
carried  past  his  destination,  was  held  entitled  to  recover  not  only  for  his  per- 
sonal expenses  and  loss  of  time,  but  damages  in  the  nature  of  demurrage  for  the 
detention  of  his  vessel,  which  was  awaiting  his  return.* 

In  an  action  against  a  railroad  company  for  a  failure  to  furnish  passenger-cars 
as  agreed  upon  for  an  excursion,  at  a  stipulated  price,  the  measure  of  recovery 
would  be  the  amount  the  plaintiff  would  have  received  as  passage-money  if  the 
train  had  gone  as  proposed,  less  the  amount  agreed  to  be  paid  for  the  use  of  the 
cars.* 

§  22.  The  same  Rules  as  to  the  Measure  of  Damages  apply  to  Corporations 
as  to  Individuals.  —  The  rule  as  to  the  computation  of  damages  for  injuries 
inflicted  upon  a  passenger  by  a  carrier  which  is  a  corporate  body  is  the  same  as 
where  the  carrier  is  a  natural  person.  There  is  no  rule  of  public  policy  requir- 
ing a  greater  or  different  compensation  from  that  which  would  be  due  from  an 
individual  under  like  circumstances.* 

§  23.  Elements  of  Damage.  —  In  estimating  compensatory  damages  in  the 
class  of  actions  we  are  considering,  the  jury  may  take  into  consideration,  as 
elements,  loss  of  time,'  inability  to  attend  to  business,*  pecuniary  expenses,* 

1  Benson  v.  New  Jersey  etc.  Transp.  Co.,  '  Pennsylvania  R.  Co.  v.  Books,  57  Pa.  St. 
fl  Bosw.  412.  339.  There  need  not  necessarily  be  evidence 

2  Williamson  v.  Grand  Trunk  R.  Co.,  17  of  the  value  of  the  time  lost,  in  order  to  re- 
Upper  Canada  C.  P.  615.  cover  therefor.    Ward  v.  Vanderbilt,  4  Abb. 

3  The  Zenobia,  1  Abb.  Adm.  80.  App.  Dec.  521. 

*  The  Canadian,  1  Brown's  Adm.  11.    See  8  McKinley  v.  Chicagoetc.  R.  Co.,  44Iowa, 

also  Porter  v.  The  New   England,  17   Mo.       814;  Pennsylvania  R.  Co.  r.  Books,  57  Pa.  St. 
290.  339 ;  Walker  v.  Erie  R.  Co.,  63  Barb.  260. 

9  The  Canadian,  1  Brown's  Adm.  11 ;  In- 
dianapolis etc.  R.  Co.  V.  Birney,  71  111.  391 ; 
Francis  v.  St.  Louis  Transfer  Co.,  6  Mo. 
App.  7. 


Illinois 

etc. 

R. 

Co. 

V. 

Demars, 

44 

ni. 

s 

no. 

Illinois 

etc. 

R. 

Co. 

V. 

Nelson, 

69 

111. 

DAMAGES.  571 


Elements  of. 


bodily  pain,'  any  incurable  hurt^  (as  where  mental  faculties  are  impaired),*  per- 
sonal inconvenience,*  and  mental  anguish  caused  by  bodily  pain.* 

Whether  mental  anguish  caused  neither  by  fear  nor  bodily  injury  —  such,  for 
■example,  as  arises  from  the  indignity  of  ejection  from  a  train  without  violence  — 
is  an  element  of  compensatory  damages,  is  a  question  upon  which  the  authorities 
are  not  fully  agreed.*  It  is  said :  "  How  can  such  damages  be  estimated  in 
money?  The  mental  agony  of  a  timid  woman  would  be  entirely  different  from 
that  of  a  bold  man.  No  two  cases  could  be  weighed  in  like  scales.  To  properly 
•estimate  such  a  cause  of  damage,  the  door  must  be  opened  to  the  realms  of 
philosophy,  physiology,  and  psychology.'"  But  the  same  remarks  would  apply 
to  damages  awarded  for  bodily  pain.  That  injuries  done  can  have  no  adequate 
redress  in  money,  or  that  damages  may  be  difficult  of  estimation,  is  no  reason 
why  pecuniary  relief  may  not  be  granted  as  a  compensation. 

§24.  Continued  —  Wealth  of  Defendant  —  Circumstances  of  Plaintiff  — 
Disfigurement  of  Person  —  Character  of  Plaintiff  —  Expense  of  Litigation  — 
Value  of  Gratuitous  Nursing.  —  In  an  action  for  compensation  for  injuries 
where  there  is  no  evidence  of  wilful  negligence  or  malice  the  wealth  or  poverty 
of  the  defendant  cannot  be  taken  into  consideration.^  It  would  be  of  no  value 
in  estimating  the  actual  damages  the  plaintiff  had  sustained.  But  it  is  often 
necessary  to  inquire  into  the  plaintiff's  condition  in  life,  his  habits,  pursuits,  and 
necessities,  in  order  to  determine  what  actual  damage  he  has  sustained;  and, 
where  pleaded,  evidence  of  that  nature  may  be  received.'  Thus,  where  damages 
were  claimed  for  the  disfigurement  of  the  plaintiff 's  face,  the  fact  that  she  was 
"a  plain  girl,  moving  in  an  humble  walk  in  life,"  was  taken  into  consideration 

»  Klein  v.  Je  wett,  26  N.  J.  Eq.  474 ;  McKin-  Flagg,  43  111.  364 ;  Craker  v.  Chicago  etc.  R. 

ley  V.  Chicago  etc.  R.  Co.,  44  Iowa,  314,  319;  Co.,  36  Wis.  Gttl ;  Ransom  v.  New  York  etc. 

Morse  V.  Auburn  etc.  R.  Co.,  10  Barb.  621;  R.  Co.,  15  N.  Y.  415;  Sherley  v.  Billings,  8 

Ohio  etc.  R.  Co.  v.  Dickerson,  59  Ind.  317;  Bush,  147;  Paine  v.  Chicago  etc.  R.  Co.,  45 

Whalen  v.  St.  Louis  etc.  R.  Co.,  60  Mo.  323;  Iowa,  569;  Hamilton  v.  Third  Avenue  R.  Co., 

Ransom  v.  New  York  etc.  R.  Co.,  15  N.  Y.  53  N.  Y.  25;  s.  c.  48  How.  Pr.  50.    See  Cole- 

415;  Curtis  v.  Rochester  etc.  R.  Co.,  20  Barb.  ridge,  J.,  in  Blake  v.  Midland  R.  Co.,  18  Q. 

282  (affirmed  in  18  N.  Y.  534).    See  Pennsyl-  B.  93;  s.  c.  21  L.J.  (Q.  B.)  233;  IBJur.  562;  10 

vania  R.  Co.  v.  Allen,  53  Pa.  St.  276.    And  see  Eng.  Law  &  Eq.  437 ;  s.  p.  Masters  v.  Warren, 

Theobald  v.  Railway  Passengers'  Ass.  Co.,  10  27  Conn.  293 ;  Seger  v.  Burkhamsted,  22  Conn. 

Exch.  45;  s.  c.  26  Eng.  Law  &  Eq.  432.  290;  Canning  v.  Williamstown,  1  Cush.  451. 

2  Whalen  V.  St.  Louis  etc.  R.  Co.,  60  Mo.  See  contra,  Johnson  v.  Wells,  6  Nev.  224 
323;  Pittsburgh  etc.  R.  Co.  v.  Andrews,  39  (overruled  in  Quigley  v.  Central  Pacific  R- 
Md.  329.  Co.,  11  Nev.  350) ;  .Smith  v.  Pittsburgh  etc.  R. 

3  Toledo  etc.  R.  Co.  v.  Baddeley,  54  III.  19.  Co.,  23  Ohio  St.  10. 

<  Hobbs  V.  London  etc.  R.  Co.,  L.  R.  10  Q.  '  Whitman,  J.,  in  Johnson  v.  Wells,  6  Nev. 

B.  Ill;  «.  c.  44  L.  J.  (Q.  B.)49;  23  Week.  Rep.  224,232. 

620;  32  L.  T.  (N.  s.)  352.  *  Caldwell  v.  Murphy,  1  Duer,  2.33.    In  a 

5  Pittsburgh  etc.  R.  Co.  v.  Andrews,  39  case  which  will  warrant  the  infliction  of 
Md.  329;  Memphis  etc.  R.  Co.  v.  Whitfield,  exemplary  damages,  the  wealth  of  the  de- 
44  Miss.  466;  Johnson  v.  Wells,  6  Nev.  224;  fendaut  may  be  taken  into  consideration. 
Muldowney  v.  Illinois  etc.  H.  Co.,  36  Iowa,  New  Orleans  etc.  R.  Co.  v.  Hurst,  36  Miss. 
462 ;  Fairchild  v.  California  Stage  Co.,  13  Cal.  660. 

599.  »  Lains:  v.  Colder,  8  Pa.  St.  479;  Pennsyl- 

6  The  f<illowing  authorities  seem  to  hold  vania  R.  Co.  v.  Books,  57  Pa.  St.  .3.39;  Winters 
the  affirmative:  McKinley  v.  Chicago  etc.  i7.  Hannibal  etc.  R.  Co.,  .39  Mo.  468.  But  aee 
R.  Co.,  4/   Iowa,  314 ;  Chicago  etc.  R.  Co.  v.  Stockton  v.  Frey,  4  Gill,  400. 


572  REMEDIES,    PROCEDURE,    AND    DAMAGES. 


Notes. 


in  fixing  the  amount.'  But  it  is  said  that  the  character  of  the  passenger  cannot 
be  considered  as  an  element  in  estimating  the  amount  of  damages. ^  Unless  the 
case  be  such  as  to  warrant  exemplary  damages,  the  jury  are  not  allowed  to  take 
into  consideration  the  probable  expenses  of  litigation,  beyond  the  taxable  costs 
and  counsel-fees.^  The  value  of  nursing  gratuitously  bestowed  upon  a  passen- 
ger injured  by  an  accident  to  a  vessel  upon  which  she  was  travelling  has  also 
been  held  an  element  of  damages.* 

§  25.  Continued  —  Damages  ■whicli  may  be  recovered  by  Husband  and 
"Wife  jointly  suing  —  Recovery  by  Father  for  Injury  to  Child.  —  In  an  action 
against  a  passenger-carrier  by  a  husband  and  vnie  for  injuries  received  by  the 
wife,  damages  for  her  personal  injury  and  suffering  may  be  recovered,  but  the 
loss  of  income  from  her  incapacity  to  labor,  and  the  expenses  of  her  cure,  must 
be  recovered  in  an  action  brought  by  the  husband  alone. ^  In  Illinois,  the  wife 
can  sue  without  joining  her  husband  in  such  an  action.*  But  the  shock  to  the 
feelings  of  the  husband  or  parent  cannot  enter  as  an  element  of  damages  in  a 
suit  for  injuries  received  by  the  wife  or  child,  —  such  damages  being  recover- 
able only  by  those  who  in  their  own  proper  persons  are  injured  J 

§  26.  Mitigation  of  Damages.  —  The  fact  that  one  who  is  injured  by  a  pas- 
senger-carrier continues  to  receive  his  salary  from  his  emploj'^er  during  the  time 
he  is  disabled  by  such  Injury  cannot  mitigate  the  damages  that  the  injured  per- 
son would  otherwise  be  entitled  to  recover  in  an  action  therefor.**  Nor  are  the 
damages  in  such  a  case  subject  to  any  deduction  by  reason  of  money  having  been 
paid  to  the  passenger  by  an  insurance  company,  under  a  policy  against  accidents, 
as  compensation  for  the  same  injury.'  The  liability  of  a  railroad  company  for  a 
violent  ejection  of  a  passenger  from  its  train  is  not  diminished  by  the  fact  that 
he  was  at  the  time  suffering  from  a  disease  which  aggravated  the  injuries  sus- 
tained or  rendered  them  more  difficult  of  cure.'"  But  when  a  passenger  offered, 
without  any  explanation,  a  ticket  which  was  void  by  reason  of  having  been 
punched,  and  refused  to  pay  his  fare,  for  which  he  was  ejected  from  the  car  three 
or  four  miles  from  a  station,  contrary  to  the  Illinois  statute,  it  was  held  that  the 
attempt  of  the  plaintiff  to  use  such  a  ticket  without  explanation  as  to  how  he 
obtained  it  was  evidence  of  wrong  on  his  part,  and  must  mitigate  the  damages 
which  otherwise  would  be  awarded." 

In  an  action  by  a  passenger  for  wrongful  ejection  from  a  railroad  train,  it 

1  The  Oriflamme,  3  Sawyer,  397 ;  «.  c.  2  Cent.  in  the  name  of  both.  McDonald  v.  Chicago 
L.  J.  473;  7  Ch.  Leg.  N.  347.  etc.  R.  Co.,  26  Iowa,  124. 

2  Johnson  v.  Wells,  6  Nev.  224.  «  Seymour  v.  Chicago  etc.  R.  Co.,  3  Biss. 

3  Lincoln  v.  Saratoga  etc.  R.  Co.,  23  Wend.  43.  • 

425;  New  Orleans  etc.  R.  Co.  v.  Ailbritton,  '  Black  v.  Carrollton  R.  Co.,  10  La.  An.  33. 

38  Miss.  242;  The  Oriflamme,  3  Sawyer,  397;  *  Ohio  etc.  R.  Co.  v.  Dickerson,  59Ind.  317. 

«.  c.  2  Cent.  L.  J.  473;  7  Ch.  Leg.  N.  347.  »  Bradburn  v.  Great  Western  R.  Co.,  L. 

*  The  D.  S.  Gregory,  2  Ben.  226.  R.  10  Exch.  1;  s.  c.  44  L.  J.  (Exch.)  9;  Wtts- 

5  Klein  v.  Jewett,  26  N.  J.  Eq.  474;  Hop-  burgh  etc.  R.  Co.  v.  Thompson,  56  111.  138. 

kins  V.  Atlantic  etc.  R.  Co.,  36  N.  H.  9.    In  '"  Brown  v.  Hannibal  etc.  R.  Co.,  66  Mo. 

Iowa,  the  common-law  rule  as  stated  in  the  588. 

text   is  changed    by  statute.    Expenses  of  "  Terre  Haute  etc.  R.  Co.  v.  Vauatia,  21 

her  cure  and  damages  for  loss  of  her  ser-  111.  188. 

vice  may  be  recovered  in  an  action  brought 


DAMAGES. 


573 


Exemplary. 


appeared  that  the  rate  of  fare  fixed  by  the  company  was  higher  than  that 
allowed  by  law ;  that  the  plaintiff  tendered  the  legal  rate ;  that  upon  his  refusal 
to  pay  more  he  was  ejected  from  the  cars,  but  without  any  rudeness  or  unnec- 
essary violence;  that  at  the  time  he  took  passage  the  plaintiff  knew  the  rate 
established  by  the  company,  and  expected  to  be  ejected  from  the  cars,  intending 
to  bring  an  action  for  such  ejection,  in  order  to  test  the  right  of  the  company  to 
charge  the  established  rate.  Upon  these  facts,  the  plaintiff  was  held  entitled  to 
compensatory  damages  only,  and  the  company  was  permitted,  for  the  purpose 
of  mitigating  the  damages,  to  give  in  evidence  subsequent  declarations  of  the 
plaintiff  tending  to  prove  that  his  object  in  taking  passage  on  the  cars  was  to 
make  money  by  bringing  suit  against  the  company  for  demanding  more  than  the 
statutory  rate  of  fare.i 

§  27.  Exemplary  Damages. —  (1.)  May  be  awarded,  token.  — Damages  may  be 
given  in  some  cases,  for  injuries  received  by  a  passenger,  to  a  greater  amount 
than  will  compensate  for  the  injury  actually  sustained.^  Such  damages  are 
termed  exemplary,  punitive,  or  vindictive  damages, — sometimes  called  "smart- 


1  Cincinnati  etc.  R.  Co.  ».  Oole,   29  Ohio 
St.  126. 

-  Able  writers  have  differed  on  the  ques- 
tion whether  exemplary  damages  may  be 
given  in  any  case.  Prof.  Greenleaf  and  Mr. 
Sedgwick  have  discussed  it  at  length,  and 
subsequent  annotators  of  their  respective 
works  have  taken  up  the  discussion  so  ably 
carried  on  by  these  great  authors  in  their 
controversy.  Each  cites  a  large  number  of 
authorities  to  sustain  his  position,  and  each 
apparently  succeeds  to  his  own  satisfaction 
in  proving  that  his  views  are  correct.  The 
l)Osition  held  by  Prof.  Greenleaf,  as  stated 
in  his  great  work  on  Evidence  (2  Greenl.  on 
Ev.,  13th  ed,  §  253  — see  note2)  is  as  follows: 
"Damage-  are  given  as  a  compensation, 
recompense,  or  satisfaction  to  the  plaintiff 
for  an  injury  actually  received  by  him  from 
the  defendant.  Thei/  should  be  precisely  com- 
mensurate with  the  injury,  neither  more  nor 
less,  and  this  whether  it  be  to  his  person  or 
estate."  While  Mr.  Sedgwick,  in  his  valu- 
able treatise  on  the  Law  of  Damages  (Sedgw. 
on  Dam.,  6th  ed.,  p.  38  —  see  also  chap.  18,  p. 
466,  note  1),  says:  "  Where  either  of  these 
elements  of  fraud,  malice,  gross  negligence, 
or  oppression  mingle  in  the  controversy,  the 
law,  instead  of  adhering  to  the  system  or 
even  the  language  of  compensation,  adopts  a 
wholly  different  rule.  It  permits  the  jury  to 
give  what  it  terms  punitory,  vindictive,  or 
exemplary  damages;  in  other  words,  blends 
together  the  interest  of  society  and  of  the 
aggrieved  individual,  and  gives  damages, 
not  only  to  recompense  the  sufferer,  but  to  pun- 
ish the  offender."  Theron  Metcalf,  then  re- 
porter of  the   Slate  of   Massachusetts,  and 


since  judge  of  the  Supreme  Court  of  that 
State  (3  Am.  Jur.  287-313),  and  Chancellor 
Kent  (2  Kent's  Comm.,  12th  ed.,  pt.  4,  §  24,  p. 
15,  note  a)  take  opposite  sides  on  this  ques- 
tion, and  numerous  judges  and  text-writers 
have  noticed  the  controversy.  See  Fay  v. 
Parker,  o3  X.  H.  342,  where  the  question  is 
considered  at  length,  and  numerous  author- 
ities on  the  subject  are  reviewed.  The  ques- 
tion, however,  maybe  considered  as  settled; 
the  current  of  authority  at  the  present  time 
being  in  accord  with  the  principle  stated  in 
the  text.  "  It  is  a  well-established  principle 
of  the  common  law,  that  in  actions  of  tres- 
pass and  all  actions  on  the  case  for  torts,  a 
jury  may  inflict  what  are  called  exemplary, 
punitive,  or  vindictive  damages  upon  a  de- 
fendant, having  in  view  the  enormity  of  his 
offence  rather  than  the  measure  of  compen- 
sation to  the  plaintiff.  We  are  aware  that 
the  propriety  of  this  doctrine  has  been  ques- 
tioned by  some  writers,  but  if  repeated  judi- 
cial decisions  for  more  than  a  century  are 
to  be  received  as  the  best  exposition  of  what 
the  law  is,  the  question  will  not  admit  of 
argument.  By  the  common  as  well  as  by 
statute  law,  men  are  often  punished  for 
aggravated  misconduct  or  lawless  acts,  by 
means  of  a  civil  action,  and  the  damages 
inflicted  by  way  of  penalty  or  punishment 
given  to  the  party  injured."  Grier,  J.,  in 
Day  V.  Woodworth,  13  Ilow.  363,  371.  See 
also  Phila.  etc.  U.  Co.  v.  Quigley,  21  How. 
202,  213;  Milwaukee  etc.  U.  Co.  v.  Arms,  91 
U.  S.  189;  Memphis  etc.  U.  Co.  v.  Whitfield. 
44  Miss.  460;  Hopkins  v.  Atlantic  etc.  B.  Co., 
36  N.  H.  9. 


574  REMEDIES,    PROCEDURE,    AND    DAMAGES. 


Notes. 


money,"  —  and  are  only  awarded  in  cases  where  there  is  an  element  either  of 
fraud,  malice,  such  a  degree  of  negligence  as  indicates  a  reckless  indifference  to 
consequences,  oppression,  insult,  rudeness,  caprice,  wilfulness,  or  other  causes 
of  aggravation  in  the  act  or  omission  causing  the  injury.  They  are  inflicted  as  a 
punishment  to  the  wrong-doer  and  as  an  example  to  others.^  Some  of  the  authori- 
ties include  "gross  negligence  "  on  the  part  of  the  defendant  as  one  of  the  ele- 
ments which,  mingling  in  the  wrongful  act  complained  of,  entitles  the  plaintiff 
to  exemplary  damages.^  But  the  better  view  is  given  in  an  opinion  delivered 
in  a  recent  case  in  the  Supreme  Court  of  the  United  States.*  This  was  an  action 
brought  for  damages  sustained  by  a  lady  passenger  on  a  train  at  the  time  when  a 
collision  occurred.  The  train,  while  running  at  a  speed  of  fourteen  or  fifteen 
miles  an  hour,  collided  with  another  train  moving  in  an  opposite  direction  on 
the  same  track.  The  jar  occasioned  by  the  collision  was  light,  and  more  of  a 
push  than  a  shock.  The  fronts  of  the  two  engines  were  demolished,  and  a  new 
engine  removed  the  train.  This  was  all  the  testimony  offered  by  either  party  as 
to  the  character  of  the  collision,  and  the  cause  of  it ;  but  there  was  evidence 
tending  to  show  that  the  lady  was  throvm  from  her  seat,  and  sustained  the  inju- 
ries of  which  she  complained.  The  trial  court  gave  the  following  instruction : 
"  If  you  find  that  the  accident  was  caused  by  the  gross  negligence  of  the  defend- 
ant's servants  controlling  the  train,  you  may  give  the  plaintiffs  punitive  or  exem- 
plary damages."  In  reversing  the  case,  Mr.  Justice  Davis,  who  delivered  the 
opinion  of  the  Supreme  Court,  said:  "  Some  of  the  highest  English  courts  have 
come  to  the  conclusion  that  there  is  no  intelligible  distinction  between  ordinary 
and  gross  negligence.*  Lord  Cranworth,  in  Wilson  v.  Brett,^  said  that  gross  neg- 
ligence is  ordinary  negligence  with  a  vituperative  epithet;  and  the  Exchequer 
Chamber  took  the  same  view  of  the  subject.*  In  the  Common  Pleas,  Grill  v.  Gen- 
eral Iron  Screw  Collier  Company '  was  heard  on  appeal.  One  of  the  points  raised 
was  the  supposed  misdirection  of  the  Lord  Cheep  Justice  who  tried  the  case, 
because  he  had  made  no  distinction  between  gross  and  ordinary  negligence.  Mr. 
Justice  WiLLEs,  in  deciding  this  point,  after  stating  his  agreement  with  the  dictum 
of  Lord  Cranworth,  said :  '  Confusion  has  arisen  from  regarding  '♦  negligence  " 
as  a  positive  instead  of  a  negative  word.  It  is  really  the  absence  of  such  care 
as  it  was  the  duty  of  the  defendant  to  use.  "  Gross  "  is  a  word  of  description, 
and  not  of  definition ;  and  it  would  have  been  only  introducing  a  source  of  con- 
fusion to  use  the  expression  "gross  negligence  "  instead  of  the  equivalent,  — a 
want  of  due  care  and  skill  in  navigating  the  vessel,  —  which  was  again  and  again 
used  by  the  Lord  Chief  Justice  in  his  summing  up.'     '  Gross  negligence '  is 


>  Heirn  v.  McCaughan,  32  Miss.  17;  New  one  of   reckless  negligence,  and  is  not   a 

Orleans  etc.  R.  Co.  v.  Hurst,  36  Miss.  660;  proper  case  for  exemplary  damages." 

Graham  v.  Pacific  R.  Co.,  66  Mo.  536;  New  «  Frink  v.  Coe,  4  Greene  (Iowa),  555;  Tay- 

Orleans  etc.  R.  Co.  v.  Statham,  42  Miss.  607;  lor  v.  Grand  Tmnk  R.  Co,  48  N.  H.  304;  Hop- 

Peck  V.  Neil,  3  McLean,  22;  Pennsylvania  R  kins  v.  Atlantic  etc.  R.  Co.,  36  N.  H.  9. 

Co.  V.  Books,  57  Pa.  St.  339;  Caldwell  v.  New  3  Milwaukee  etc.  R.  Co.  v.  Arms,  91  U.  S. 

Jersey  Steamboat  Co.,  47  N.  Y.  282;  Chicago  489. 

etc.  R.  Co.  V.  Williams,  55  111.  185.    In  The  <  Redf.  on  Car.,  §  376. 

D.  S.  Gregory,  2  Ben.  226, 240,  the  judge  says :  «  11  Mee.  &  W.  113. 

"  I  allow  nothing  for  exemplary,  punitive,  «  Beal  v.  South  Devon  R.  Co.,  3  Hurl.  & 

or  vindictive  damages.    The  case  is  not  one  Colt.  3^7. 

of  malicious  or  wilful  injury,  although  it  is  "  L.  R.  1  C.  P.  600. 


DAMAGES.  bib- 


Exemplary  —  Corporations  liable. 


a  relative  term.  It  is  doubtless  to  be  understood  as  meaning  a  greater  want  of 
care  than  is  implied  by  the  term  '  ordinary  negligence ;  '  but,  after  all,  it  means 
the  absence  of  the  care  that  was  necessary  under  the  circumstances.  In  this 
sense  the  collision  in  controversy  was  the  result  of  gross  negligence,  because  the 
employees  of  the  company  did  not  use  the  care  that  was  required  to  avoid  the 
accident.  But  the  absence  of  this  care,  whether  called  gross  or  ordinary  negli- 
gence, did  not  authorize  the  jury  to  visit  the  company  with  damages  beyond  the 
limit  of  compensation  for  the  injury  actually  inflicted.  To  do  this,  there  must 
have  been  some  wilful  misconduct,  or  that  entire  want  of  care  which  would  raise 
the  presumption  of  a  conscious  indifference  to  consequences.  Nothing  of  this 
kind  can  be  imputed  to  the  persons  in  charge  of  the  train ;  and  the  court,  there- 
fore, misdirected  the  jury."  ' 

(2.)  When  Corporations  are  liable.  —  There  is  no  doubt  that  corporations,  like 
individuals,  may  be  liable  in  a  proper  case  for  exemplary  damages.''  Some  of 
the  authorities,  however,  hold  that  there  must  be  either  an  authorization  or  rati- 
fication of  the  act  complained  of,  by  the  corporation,  to  warrant  the  infliction  of 
more  than  compensatory  damages.*  In  the  language  of  one  of  the  authorities : 
"Where  a  railroad  company  adopts  all  rules  and  regulations  needful  for  the 
safety  of  the  passengers,  and  employs  competent  agents  whose  duty  it  is  to  see 
that  these  rules  and  regulations  are  observed,  I  do  not  think  that  the  company, 
in  case  of  injury  to  the  passengers,  happening  by  reason  of  the  failure  of  the 
agent  to  perform  this  duty,  can  be  held  liable  for  punitive  damages.  If,  however, 
the  company,  as  such,  is  in  fault,  a  different  rule  applies.  The  company,  for  its 
own  carelessness,  may  be  justly  held  liable  for  smart-money."  *  Others  hold 
that  slight  acts  will  be  suflScient  to  indicate  ratification,  —  such  as  retaining  in 
the  service  of  the  company  the  employee  whose  act  caused  the  injury,  after 
knowledge  of  the  act  by  the  officers  of  the  corporation.* 

But  the  rule  which  is  in  accord  with  reason  and  the  weight  of  authority  is  that 
passenger-carriers,  although  corporations,  may  be  liable,  in  a  proper  case,  in 
exemplary  damages  for  injuries  to  passengers  caused  by  their  agents,  without  a 
direct  authorization  or  subsequent  ratification  of  the  act  complained  of.  In  a 
recent  opinion  on  this  subject,  it  is  said  of  the  servants  of  a  corporation:  "  They 
act  on  the  peril  of  the  corporation  and  their  own.     Indeed,  as  that  fictitious 

1  See   also   Western  Union  Tel.   Co.  v.  "  Malecek  v.  Tower  Grove  etc.  R.  Co.,  57 

Eyeer,  91  U.  S.  495,  note;  Kentucky  etc.  R.  Mo.  17;  Graham  v.  Pacific  R.  Co., 66  Mo.  5:56; 

Co.  V.  Dills,  4  Bush,  593;  Quigley  v.  Central  Pittsbuigh  etc.  R.  Co.  v.  Slusser,  19  Ohio  St. 

Pacific  R.  Co.,  11  Nev.  350;  McKeon  v.  Citi-  157;  Atlantic  etc.  R.  Co.  v.  Dunn,  19  Ohio  St. 

zens'  R.  Co.,  42  Mo.  79;    Doss  v.  Missouri  162;  Caldwell  «.  New  Jersey  Steamboat  Co., 

etc.  R.  Co.,  59  Mo.  27;  Southern  R.  Co.  v.  47  N.  Y.  282.    Con/ra,  Wardrobe  v.  California 

Kendrick,  40  Miss.  374;  Thompson  v.  New  Stage  Co.,  7  Cal.  118. 

Orleans  etc.  R.  Co.,  50  Miss.  315;  Hill  v.  New  •'  New  Orleans  etc.  R.  Co.  v.  Allbritton,  38 

Orleans  etc.  R.  Co.,  11  La.  An.  292;  Toledo  Miss.  242;  Hagan  v.  Providence  etc.  R.  Co.,  3 

etc.  R.  Co.  V.  Patterson,  63  111.  304;  Pullman  R.  I.  88;  Milwaukee  etc.  R.  Co.  v.  Finney,  10 

etc.  Co.  V.  Reed,  75  111.  125;  Seymour  v.  Chi-  Wis.  388  (overruled  in  Craker  v.  Chicago  etc. 

cago  etc.  R.  Co.,  3  Biss.  43;  Du  Laurans  v.  R.  Co.,  36  Wis.  657) ;  Turner  v.  North  Beach 

St.  Paul  etc.  R.  Co.,  15  Minn.  49;  Hamilton  v.  etc.  R.  Co.,  34  Cal.  594. 

Third  Avenue  R.  Co.,  53  N.  Y.  25;  Paine  v.  *  Ackerson  v.  Erie  R.  Co.,  82  N.  J.  L.  2.54, 

Chicago  etc.  R.  Co.,  45  Iowa,  569;  Pittsburgh  260. 

etc.  R.  Co.  V.  Slusser,  19  Ohio  St.  157.    But  "^  Perkins  v.  Missouri  etc.  R.  Co.,  66  Mo. 

see  Kansas  Pacific  R.  Co.  ».  Kessler,  18  Kan.  201;  Graham  v.  Pacific  R.  Co.,  66  Mo.  .536; 

623,  Goddard  v.  Grand  Trunk  R.  Co.,  57  Me.  202. 


57(5 


REMEDIES,    PROCEDURE,    AND     DAMAGES. 


Notes. 


entity,  the  corporation,  can  act  only  through  natural  persons,  its  ofHcers  and 
servants,  and  as  it  of  necessity  commits  its  trains  absolutely  to  the  charge  of 
officers  of  its  own  appointment,  and  passengers  of  necessity  commit  to  them 
their  safety  and  comfort  in  transitu,  under  conditions  of  such  peril  and  subor- 
dination, we  are  disposed  to  hold  that  the  whole  power  and  authority  of  the 
corporation,  pro  hac  vice,  is  vested  in  these  officers,  and  that,  as  to  passengers 
on  board,  they  are  to  be  considered  as  the  corporation  itself ;  and  that  the  conse- 
quent authority  and  responsibility  are  not  generally  to  be  straitened  or  impaired 
by  any  arrangement  between  the  corporation  and  the  officers :  the  corporation 
being  responsible  for  the  acts  of  the  officers  in  the  conduct  and  government  of 
the  train,  to  the  passengers  travelling  by  it,  as  the  officers  would  be  for  them- 
selves if  they  were  themselves  the  owners  of  the  road  and  train."  ^ 

Another  authority  says :  *'  We  confess  that  it  seems  to  us  that  there  is  no  class 
of  cases  where  the  doctrine  of  exemplary  damages  can  be  more  beneficially 
applied  than  to  railroad  corporations  in  their  capacity  of  common  carriers  of 
passengers ;  and  it  might  as  well  not  be  applied  to  them  at  all  as  to  limit  its 
application  to  cases  where  the  servant  is  directly  or  impliedly  commanded  by 
the  corporation  to  maltreat  and  insult  a  passenger,  or  to  cases  where  such  an 
act  is  directly  or  impliedly  ratified ;  for  no  such  cases  will  ever  occur.  A  corpo- 
ration is  an  imaginary  being.  It  has  no  mind  but  the  mind  of  its  servants ;  it 
has  no  voice  but  the  voice  of  its  servants ;  and  it  has  no  hands  with  which  to  act 
but  the  hands  of  its  servants.  All  its  schemes  of  mischief,  as  well  as  its  schemes 
of  public  enterprise,  are  conceived  by  human  minds  and  executed  by  human 
hands;  and  these  minds  and  hands  are  its  servants'  minds  and  hands.  All 
attempts,  therefore,  to  distinguish  between  the  guilt  of  the  servant  and  the 
guilt  of  the  corporation,  or  the  malice  of  the  servant  and  the  malice  of  the 
corporation,  or  the  punishment  of  the  servant  and  the  punishment  of  the  cor- 
poration, is  sheer  nonsense,  and  only  tends  to  confuse  the  mind  and  confound 
the  judgment.  *  *  *  It  is  our  judgment,  therefore,  that  actions  against 
corporations  for  the  wilful  and  malicious  acts  of  their  agents  and  servants  in 
executing  the  business  of  the  corporation  should  not  form  exceptions  to  the 
rule  allowing  exemplary  damages.  On  the  contrary,  we  think  this  is  the  very 
class  of  cases,  of  all  others,  where  it  will  do  the  most  good,  and  where  it  is  the 
most  needed."  ^ 

(3.)  Questions  of  Law  and  Questions  of  Fact. — In  actions  for  neglect  of  duty 
whereby  passengers  are  injured,  the  jury  are  the  sole  judges  as  to  the  existence 
of  facts  showing  that  the  act  complained  of  was  attended  with  circumstances 
of  aggravation ;  but  what  elements  must  form  a  part  of  the  transaction  to  warrant 
the  finding  of  exemplary  damages  is  a  question  of  law.* 

§  28.  Excessive  Damages — When  Appellate  Courts  -will  reverse  Judgments 
on  account  of.  —  In  actions  for  injuries  to  passengers,  where  there  is  no  fixed 
rule  of  compensation,  courts  are  loath  to  set  aside  the  verdicts  of  juries  or  to 

1  Bass  V.  Chicago  etc.  R.  Co.,  36  Wis.  450;  Rogers,  38  Ind.  116;  Baltimore  etc.  R.  Co.  v. 
».  c.  anie,  p.  311.  Blocher,    27    Md.    277;    Quigley   v.    Central 

2  Goddard  v.  Grand  Trunk  R.  Co.,  57  Me.       Pacific  R.  Co.,  11  Xev.  350. 

202,  223.    See  also  Hanson  v.  European  etc.  ^  Jackson  v.  Second  Avenue  R.  Co.,  47  N. 

R.  Co.,  62  Me.  84;   Chicago   etc.   R.  Co.  v.        Y.  274;  Southern  R.  Co.  v.  Kendrick,  40  Miss. 
Herring,  57  111.  59;  Jeffersonville  R.  Co.  v.        374. 


DAMAGES QUANTUM    OF.  577 


Wrongfully  ejecting  Passengers. 

reverse  judgments  founded  thereon,  simply  because  the  damages  awarded  seem 
excessive.  In  a  recent  New  York  case  '  the  court  say:  "Even  if  it  was  clear 
that  the  damages  were  excessive,  it  is  not  the  province  of  this  court  to  interfere 
on  any  such  ground."  But  if  the  damages  are  so  manifestly  unjust  and  dispro- 
portionate as  to  show  that  the  jury  have  been  misled  either  by  passion,  preju- 
dice, partiality,  or  misapprehension,  the  courts  will  usually  interfere.'  The 
following  instances  of  the  action  of  courts,  either  in  reversing  judgments  or 
refusing  to  interfere  on  this  ground,  will  afford  illustration  of  the  foregoing :  — 

§29.  Illustrations.  —  (1.)  For  wrongfully  ejecting  Passenger. — A  passenger 
paid  for  a  railroad  ticket  to  a  certain  station,  but  through  inadvertence  received 
a  ticket  to  an  intermediate  point,  and  refused  to  pay  the  extra  fare  (only  twenty 
cents)  subsequently  demanded.  He  also  refused  to  leave  the  train,  so  that  he 
had  to  be  put  off  by  force,  but  immediately  got  on  board  another  coach,  agree- 
ing to  pay  the  sum  demanded.  While  making  change,  the  passenger  used  grossly 
profane  and  obscene  language  in  the  presence  of  ladies,  for  which  he  was  again 
forcibly  expelled,  no  more  force  being  used  at  either  time  than  was  necessary  to 
overcome  his  resistance.  A  verdict  of  $1,500  was  held  to  be  grossly  excessive, 
and  out  of  all  proportion  to  the  injuiy  inflicted  upon  him  other  than  what  was 
attributable  to  his  own  misconduct.^  A  passenger  who  had  purchased  a  ticket 
for  a  particular  berth  in  a  sleeping-car,  and  lost  the  same,  gave  satisfactory 
assurance  that  he  had  purchased  such  ticket,  but  was  nevertheless  wrongfully 
rxpelled  from  the  sleeping-car,  but  without  circumstances  of  indignity,  the 
conductor  having  oulj'  an  honest  purpose  to  execute  a  reasonable  rule  of  the 
company.  Three  thousand  dollars  was  held  to  be  grossly  excessive  damages 
for  tliis  conduct,  as  the  case  showed  only  an  honest  difference  of  opinion  between 
the  conductor  and  passenger,  and  that  the  latter  might  have  kept  his  berth  by 
paying  the  sum  of  $1.50.  The  passenger  was  therefore  held  to  be  entitled  to 
recover  only  the  price  paid  for  the  lost  ticket,  and  a  reasonable  compensation 
for  the  inconvenience  suffered  by  being  deprived  of  his  berth  in  the  sleeping-car.* 

The  conductor  of  a  railroad  train  took  up  the  ticket  of  a  passenger,  giving 
him  no  check  in  return,  and  when  within  a  few  miles  of  such  passenger's  des- 
tination, accused  him  of  attempting  to  ride  beyond  the  distance  for  which  he 
liad  paid,  charged  him  with  falsehood,  treated  him  insolently  in  the  presence  of 
the  other  passengers,  seized  and  put  him  off  the  train  in  a  rude  and  angry  man- 
ner at  a  place  where  there  was  no  station  or  house,  it  being  cold  and  dark  and 
about  nine  o'clock  at  night.  A  verdict  of  $700  for  the  plaintiff  was  held  not 
excessive.^ 

A  passenger  who  had  purchased  a  first-class  ticket  began  his  journey  upon  a 
train  composed  of  freight  and  passenger  cars.     A  regular  passenger-train  over- 

1  Maher  v.  Central  Park  R.  Co.,  67  X.  Y.  Minn.  49;  Georgia  etc.  R.  Co.  v.  McCurdy,  45 
52,56  (afli  •inings.  c.  7  Jones  &  Sp.  If,:-,).  Ga.  288;  Monlgomery  etc.  R.  Co.  v.  I{oriiig,51 

2  Terre  Haute  etc.  U.  Co.  v.  Vanatta,  21  Ga.  582;  Collins  v.  Albany  etc.  U.  Co.,  12 
111.  188;  Graham  v.  Pacific  H.  Co.,  60  Mo.  5156;  Uaib.  492;  Clapp  v.  Hudson  liiver  R.  Co;,  I'J 
Union  Pacilic  R.  Co.  v.  Hand,  7  Kan.  380;  IJaib.  161;  Farish  v.  Roigle,  11  (Jratt.  (597. 
Missouri  etc.  R.  Co.  v.  Weaver,  16  Kan.  456;  ^  Chicago  etc.  R.  Co.  v.  Gi-inin,  68  111.  499. 
New  Orleans  etc.  R.  Co.  v.  Ilurst,  ;50  .Miss.  660 ;  ■•  Pullman  etc.  Co.  v.  Heed,  76  111.  125. 
New  Orleans  etc.  R.  Co.  v.  Statham,  42  .Miss.  ••  Indianaiiolis  etc.  11.  Co.  v.  Milligan,  50 
<;u7;  Uu  Laurans  v.  St.  Paul  etc.  It.  Co.,  l^  Ind.  :;'.)■-'. 


578  REMEDIES,    PROCEDURE,    AND    DAMAGES. 


Notes. 


took  this  traiu  at  one  of  the  stations,  and  in  order  the  sooner  to  arrive  at  Ms 
destination,  the  passenger  decided  to  linisli  his  journey  upon  such  train.  The 
conductor  of  the  tirst  train  assured  the  passenger  that  the  checli  which  he  had 
received  in  exchange  for  his  ticket  would  be  received  by  the  conductor  of  the 
other  train  as  a  ticket  to  his  destination.  But  this  conductor  i-efused  to  accept 
it,  and  upon  tlie  refusal  of  the  passenger  to  pay  his  fare,  caused  him  to  be 
forcibly  ejected,  at  night,  wliere  there  was  no  station  and  no  house.  When  the 
train  upon  which  the  passenger  had  originally  embarked  came  along,  he  was 
taken  upon  it  and  carried  to  his  destination.  It  was  held  that  a  verdict,  in  an 
action  for  damages  against  the  company,  for  .$400  was  not  excessive. i 

The  plaintiff  had  shipped  upon  the  defendants'  raih'oad  a  car-load  of  stock 
and  received  from  the  railroad  company  what  was  called  a  "  stock  pass,"  and 
upon  his  return  trip,  the  pass,  though  unexpired,  was  not  honored  and  his  fare 
was  demanded.  Refusing  to  pay,  he  was  ejected  from  the  train,  without  force, 
between  five  and  six  o'clock  in  the  evening,  at  a  station  within  a  mile  of  the 
stock-yards  where  he  had  boarded  it.  He  walked  back  to  the  stock-yards, 
purchased  a  ticket,  and  was  carried  on  one  of  the  company's  trains  to  his  des- 
tination on  the  following  morning.  It  also  appeared  that  the  weather  was  cold, 
with  snow  on  the  ground ;  that  it  was  dark  at  the  time  he  was  put  off  the  train ; 
that  he  had  about  .$400  on  his  person,  and  was  made  sick  by  becoming  over- 
heated; was  afterwards  feeble  and  unable  to  do  much  woi'k  for  two  or  three 
months ;  but  that  the  conductor  who  ejected  him  was  acting  under  the  belief 
that  he  was  not  authorized  to  receive  the  pass.  The  judgment  given  in  the 
case,  on  a  verdict  of  $800,  was  affirmed.^ 

The  plaintiff  bought  a  ticket,  and  upon  presenting  it  to  the  conductor  it 
was  taken  up;  but  the  conductor  refused  to  allow  him  to  ride  without  pay- 
ing his  fare  again,  because  the  agent  at  the  station  where  he  had  boarded  the 
train  had  informed  the  (conductor  that  the  plaintiff  had  procured  the  ticket 
without  paying  for  it.  The  plaintiff  was  accordingly  ejected  from  the  train  at  a 
point  over  a  quarter  of  a  mile  from  the  station  where  he  had  started,  no  more 
force  being  used  than  was  necessary  for  the  purpose;  and  the  plaintiff  was 
delayed  only  one  day,  and  compelled  to  buy  another  ticket  at  an  expense  of 
$40.50.  A  verdict  of  $5,000  v>-as  held  to  be  so  excessive  as  to  indicate  passion 
and  prejudice  on  the  part  of  the  jury.^  It  was  shown  that  the  plaintiff  tendered 
the  conductor  of  the  defentlant's  train  fifty  cents  for  his  fare  to  his  destination; 
that  the  conductor  took  the  money,  but  demanded  ten  cents  more  because  the 
passenger  had  not  procured  a  ticket  before  entering  the  car ;  that  the  plaintiff 
refused  to  pay  the  further  sum  demanded,  and  the  conductor,  although  keeping 
the  fifty  cents,  ejected  him  at  the  next  station,  which  was  not  his  place  of  des- 
tination. It  was  held  that  a  verdict  ol  $500,  while  large,  would  not  justify  the 
aj)pellate  court  in  reversing  the  judgment.* 

It  appeared  that  a  passenger  was  wrongfully  expelled  from  a  train  at  a  place 
which  was  not  a  station,  three  miles  from  where  he  entered  the  cars ;  that  in 
i',,ecting  him  he  resisted,  and  that  three  of  the  company's  employees  overpow- 
i-red  him;  that  he  remonstrated  against  being  put  off  on  the  open  praii'ie,  and 

»  Toledo  etc.  R.  Co.  v.  McDonough,  53  lud.  ^  Quigley  v.  Cent.  Pac.  R.  Co.,  11  Nev.  350. 

ISO.  ^  Du  Laurans  v.  St.  Paul  etc.  R.  Co.,  15 

2  Graham  r.  I'acitic  li.  Co., 66  Mo.  536.  Minn.  49. 


DAMAGES QUANTUM    OF.  579 


Wrongfully  ejecting  Passengers. 

offered  to  pay  his  fare  to  the  next  station  rather  tlian  be  put  off  there ;  that  after 
being  put  off  he  struck,  or  struck  at,  one  of  the  brakemen  who  assisted  in  his 
ejection,  whereupon  the  brakeman  knocked  him  down,  jumped  upon  him,  and 
only  desisted  from  the  assault  when  recalled  by  the  conductor  to  the  train. 
The  passenger  was  not  permanently  injured  or  disfigured.  His  mouth  was  cut, 
and  he  received  two  other  wounds  on  his  head.  He  was  in  poor  health,  and  had 
been  for  four  years.  It  was  held  that  a  verdict  for  $5,000  was  excessive. ^  A 
passenger  was  ejected  from  a  train  because  the  conductor  was  pnder  the  impres- 
sion he  had  not  given  him  his  ticket.  The  place  where  he  was  ejected  was 
three  miles  from  the  station  where  he  had  got  on,  but  he  was  compelled  to  wait 
only  four  hours,  when  he  took  the  next  train  to  his  destination.  The  conductor 
was  under  the  impression  tliat  the  passenger  was  trying  to  impose  on  him,  but 
his  conduct  towards  the  passenger  was  neither  violent  nor  harsh.  It  was  held 
that  a  verdict  of  £50  was  excessive,  and  a  new  trial  was  accordingly  granted.^ 

(2.)  For  Removal  of  a  Passenger  from  a  Train  at  a  Place  not  a  Begular  Sta- 
tion.—  In  some  of  the  States  there  are  statutes  prohibiting  the  removal  of  a 
passenger  from  a  train  at  other  than  a  regular  station,  although  the  passenger 
has  been  guilty  of  conduct  justifying  expulsion.  Such  is  the  law  of  Illinois.  In 
the  following  cases  of  unlawful  expulsion  the  question  as  to  excess  of  damages 
has  received  the  attention  of  the  courts  of  last  resort:  A  passenger  refused 
to  pay  the  tariff  rate,  and  was  ejected  from  the  train  about  eighty  rods  from  a 
station,  without  violence  or  any  aggravating  circumstances.  One  thousand 
dollars  was  held  to  be  grossly  excessive,  and  a  judgment  therefor  was  reversed.^ 
A  passenger  offered,  without  explanation,  a  ticket  which  was  void  by  reason 
of  having  been  punched.  He  refused  to  pay  his  fare,  and  was  ejected  from  the 
car,  without  any  aggravating  circumstances,  three  or  four  miles  from  a  station. 
In  this  case  also,  $1,000  was  held  to  be  such  excessive  damages  as  to  require 
that  the  verdict  be  set  aside.* 

A  passenger  wantonly  refused  to  pay  his  fare,  simply  insisting  upon  riding  in 
the  cars  without  paying.  He  was  ejected  at  a  point  two  miles  distant  from  a 
regular  station,  but  in  a  manner  free  from  indignity,  and  was  subjected  to  no 
other  injury  or  inconvenience  by  the  expulsion  than  that  of  being  obliged  to 
walk  to  the  station.  Such  a  person  is  not  entitled  to  recover  any  more  than 
nominal  damages ;  therefore,  in  such  a  case,  a  recovery  of  a  verdict  for  $150 
was  considei'ed  excessive  and  a  new  trial  was  granted.^ 

A  passenger  on  a  freight-train  was  compelled  to  get  off  at  night  at  a  water- 
tank,  about  a  quarter  of  a  mile  from  a  station,  because  he  had  no  ticket,  in  con- 
sequence of  a  rule  of  the  company  wherel)y  passengers  were  not  allowed  to 
travel  on  freight-trains  without  tickets.  The  passenger  was  lame,  and  carried 
two  heavy  bundles.  In  order  to  reach  the  station  he  had  to  cross  a  covered 
railway  bridge  on  a  narrow  foot-path.  Upon  these  facts,  a  verdict  of  $100  was 
deemed  not  excessive.**  A  passenger  refused  to  pay  Iiis  fare,  but  told  the  con- 
ductor he  would  get  off  if  the  train  was  stopped.     Upon  the  train  being  stopped 

1  Missouri  etc.  R.  Co.  v.  Wcavei-,  16  Kan.  ■  Chicago  etc.  R.  Co.  v.  Parks,  18  111.  460 

450.  See  also  Stephen  v.  Smith,  20  Vt.  160. 

^  Huntsman  v.  Great  Western  R.  Co.,  20  <  Terre  Hiiutc  H.  Co.  v.  Vanatta,  21  111.  188. 

Upper  Canada  Q.  li.  24.    See  also  Ham.lton  '  Chicago  etc   K.  Co.  v.  R.ihcrl^,  40  III.  503. 

/■.  Third  Avenue  K.  Co.,  48  How.  Pr.  50.  «  Chicago  etc.  R.  Co.  t'.  Klagg,  ■):{  III.  :m. 


580  REMEDIES,    PROCEDURE,    AND    DAMAGES. 


Notes. 


at  a  distauce  of  three  or  four  miles  from  a  station,  he  refused  to  get  off,  and  was 
then  ejected  with  some  violence,  —  his  face  being  scratched,  and  the  skin  slightly 
abraded  in  one  or  two  places  on  his  limbs.  It  was  held  that  a  verdict  of  $1,000 
was  excessive,  and  the  judgment  was  reversed. ^ 

A  passenger  was  put  off  the  cars  at  some  distauce  from  a  station,  for  the 
reason  that  he  had  not  procured  a  ticket  before  getting  aboard.  It  appeared 
that  the  station  was  closed ;  that  the  passenger  so  informed  the  conductor,  and 
offered  to  pa}'  the  regular  fare,  which  was  refused ;  that  this  was  done  in  the 
night-time,  and  the  passenger  compelled  to  walk  back  to  the  station.  It  was 
held  that,  as  the  jury  had  found  a  verdict  for  $250,  and  a  remittitur  of  .$50  had 
been  entered  in  the  trial  court,  and  judgment  given  for  .$200,  this  sum  was  not 
excessive,  and  the  judgment  was  affirmed. ^  In  another  case,  where  the  facts 
were  similar  to  those  in  the  preceding  case,  and  a  verdict  of  .$500  was  given,  it 
was  held  by  a  majority  of  the  court  that  the  damages  were  excessive  and  that 
the  judgment  should  be  reversed.' 

(3.)  For  Refusal  to  admit  Passenger  to  a  Car — Colored  Person. — Where  a 
colored  woman  was  refused  admittance  to  the  "ladies'  car"  solely  on  account 
of  her  color,  and  was  directed  to  take  a  seat  in  another  car,  which  was  set 
apart  for  and  mostly  occupied  by  men,  which  she  declined  to  do,  insisting  upon 
her  right  to  be  admitted  to  the  ladies'  car,  and  the  evidence  justified  the 
conclusion  that  a  brakeman,  in  excluding  her  from  the  car,  did  so  in  a  very  rude 
manner,  in  the  presence  of  several  persons,  it  was  held  that  a  verdict  of  $200 
recovered  by  the  woman  against  the  railroad  company  was  not  excessive.' 
But  in  a  case  where  a  colored  woman  hailed  a  passing  street  car,  which  the 
conductor  refused  to  stop  solely  for  the  reason  that  the  woman  was  colored, 
and  the  jury  gave  a  verdict  for  $500,  such  damages  were  held  excessive.*  So, 
where  it  appeared  that  a  colored  woman  signalled  a  street  car  to  stop,  and 
upon  getting  on  the  platform,  was  ejected  with  some  violence  by  the  conductor, 
at  the  hour  of  ten  o'clock  at  night,  but  without  any  appreciable  injury,  and 
immediately  afterwards  was  conveyed  on  another  of  the  same  company's  cars  to 
her  destination,  a  verdict  for  $750  was  held  to  be  excessive,  and  the  judgment 
thereon  reversed.^ 

(4.)  For  Assault  upon  Passenger  by  Carner''s  Servants.  —  The  Supreme  Court 
of  Wisconsin  has  adopted  the  rule  that  the  plaintiff  in  cases  of  this  kind  is  not 
entitled  to  exemplary  damages  against  the  principal  for  the  malicious  act  of  the 
a\ent,  without  proof  that  the  principal  expressly  authorized  or  confirmed  it. 
But  this  does  not  mean  that  in  such  cases  the  recovery  against  the  principal 
for  the  tort  committed  by  its  agent  is  limited  to  mere  pecuniary  loss.  On  the 
contrary,  a  very  liberal  allowance  was  made  in  at  least  one  case  for  mental  suf- 
fering. A  conductor  of  a  railway  train,  after  engaging  in  a  short,  bantering 
conversation  with  the  plaintiff,  a  female  passenger,  seized  and  kissed  her  several 
times.  The  plaintiff  made  no  desperate  resistance,  but  the  court  thought  that 
$1,000  was  no  more  than  adequate  compensation  for  the  torture  inflicted  upon 

1  Chicago  etc.  R.  Co.  v.  Peacock,  48  111.  ''  Chicago  e4:c.  R.  Co.  v.  Williams,  55  111. 
25.3.  185. 

2  Illinois  etc.  R.  Co.  «.  Johnson,  67  111.  *  Pleasants  r.  North  Beach  etc.  R.  Co.,  .S4 
;jl2.  Cal.  586. 

3  Illinois  etc.  R.  Co.  v.  Cunningham,  67  111.  '''  Turner  v.  North  Beach  etc.  R.  Co..  34 
31G.  Cal.  594. 


i 


DAMAGES QUANTUM    OF.  581 


For  carrying  beyond  Destination. 

her  sensibilities.  Ryax,  C.  J.,  said:  "  She  was  entitled  to  liberal  damages  for 
her  terror  and  anxiety,  her  outraged  feelings  and  insulted  virtue,  for  all  her 
mental  humiliation  and  suffering."  ' 

In  a  Kentucky  case,-  the  jury  were  instructed  not  to  give  exemplary  damages, 
and  accordingly  rendered  $4,400  as  compensatory  damages  in  a  case  where  the 
clerk  of  a  steamboat  unwarrantably  assaulted  a  deck-passenger,  a  boy  fifteen 
years  of  age,  who  suffered,  among  other  injuries,  the  loss  of  an  eye.  The  Court 
of  Appeals  held  that  these  damages  were  not  excessive. 

A  verdict  of  $4,850  was  sustained  in  a  case  where  the  assault  was  entirely  un- 
provoked and  without  justification.  The  plaintiff  suffered  no  personal  injury, 
but  was  assailed  by  the  defendant's  brakeman  in  language  coarse,  profane,  and 
grossly  insulting,  supplemented  by  terrible  threats  of  personal  violence.  The 
plaintiff  was  a  person  in  feeble  health,  and  wholly  unable  to  offer  resistance, 
and  the  brutal  servant  was  retained  in  the  employ  of  the  defendant  after  the 
occurrence.'  In  another  case,  shortly  afterwards  decided  by  the  same  court,* 
the  plaintiff  and  the  defendant's  brakeman  had  a  dispute  in  regard  to  the  pres- 
ence of  a  dog  of  the  former  in  the  passenger-car,  which  terminated  in  a  slight 
struggle  in  which  the  brakeman  was  worsted.  This  difficulty  had  entirely  ended, 
when  the  brakeman  approached  the  plaintiff  from  behind  and  inflicted  several 
blows  upon  his  head  and  shoulders  with  a  heavy  ivon  stove-poker.  There  was 
testimony  as  to  the  result  that  "the  external  table  of  the  [plaintiff's]  skull  was 
cracked,  and  his  eyes  badly  affected,  indicating  danger  of  palsy  of  the  optic 
nerve  and  the  entire  loss  of  its  functions."  Under  these  circumstances  the 
Supreme  Judicial  Court  did  not  feel  justified  in  setting  aside  the  verdict  as 
excessive." 

Other  cases  show  a  disposition  of  courts  to  allow  a  liberal  measure  of  dam- 
ages under  circumstances  of  this  kind.® 

(5.)  For  carrying  Passenger  beyond  his  Destination.  —  Two  cases  decided  by 
the  Supreme  Court  of  Mississippi  upon  this  point  show  the  extravagant  idea 
which  juries  are  apt  to  entertain  as  to  the  proper  measure  of  damages  in  actions 
against  railway  companies,  —  a  sentiment  sometimes  shared  in  by  courts.  This 
was  certainly  the  fact  in  one  of  these  cases.  In  this  case  the  jury  gave  damages 
to  the  amount  of  $4,500  on  account  of  the  defendant  conveying  the  plaintiff 
four  hundred  yards  beyond  the  station  at  which  they  had  agreed  to  carry  him, 
and  then  compelling  him  to  leave  the  cars  against  his  remonstrance,  and  con- 
trary to  his  request  that  they  should  back  the  cars  to  the  station.  The  Supreme 
Court,  in  reviewing  the  proceedings  in  the  court  below,  expressed  their  regret 
that  the  jury  had  not  acted  with  more  leniency,  but  did  not  feel  at  liberty  to 
disturb  the  verdict.'     This  case  was  subsequently  criticised  in  a  case  where  the 

1  Craker  v.  Chicago  etc.  R.  Co.,  36  Wis.  were  not  restricted  in  their  findings  to  com- 
657,  679.  jiensatory  damages.    The  whole  doctrine  of 

2  Sherley  v.  Billings,  8  Bush,  147.  exemplary  damages  was  fully  examined  in 

3  Goddard  v.  Grand  Trunk  R.  Co.,  57  Me.  Goddard  v.  Grand  Trunk  K.  Co.,  and  its  ap- 
202.  In  a  very  similar  case,  the  Supreme  plication  allowed  in  that  case  and  in  Hanson 
Court  of   Missouri    sustained   a  verdict   of  v.  European  etc.  R.  Co. 

$500  as  damages.    Malecek  v.  Tower  Grove  «  McKmley  v.  (;hicago  etc.  tt.  Co.,  44  Iowa, 

etc.  R.  Co.,  57  Mo.  17.  314  ;  IJryant  v.  Rich,  \m  Mass.  180. 

4  Hanson  r.  European  etc.  R.  Co.,  02  Me.  Kt.  'New  Orleans  etc.   R.  Co.  v.    Hurst,   ;;i; 
'■>  In  ea(;h  of  the  foregoing  cases  the  jury  Miss.  OGO. 


582  REMEDIES,    PROCEDURE,    AND    DAMAGES. 


Notes. 


plaintiff,  a  person  in  ill-health,  was  unable  to  get  off  the  cars  when  they  stopped 
at  his  destination,  although  they  remained  stationary  the  usual  length  of  time. 
The  conductor  having  been  notified  that  the  plaintiff  had  not  succeeded  in 
alighting,  again  stopped  the  train.  This  time  the  car  in  which  the  plaintiff  was 
riding  was  distant  only  about  sixty  feet  from  the  platform  of  the  station.  No 
request  was  made  to  back  the  car  to  the  platform.  The  plaintiff  descended  the 
steps  of  the  car,  and  was  then  carried  into  the  station  in  a  chair  by  his  friends 
and  the  company's  employees.  For  the  alleged  wrong  done  in  not  detaining  the 
train  at  the  first  stoppage  a  sufiicient  length  of  time  to  enable  the  plaintiff  to 
get  off,  the  jury  awarded  the  sum  of  $3,275  as  damages,  which  verdict  the 
Supreme  Court  unhesitatingly  set  aside,  remarking  that  this  course  ought  to 
have  been  pursued  in  the  case  before  noticed. ^ 

(6.)  For  Injury  to  Passenger  in  Bailroad  Accident.  —  The  plaintiff,  a  passenger 
on  defendant's  railroad  train,  was  injured  in  a  railroad  accident,  and  in  conse- 
quence was  confined  from  two  to  three  weeks  to  his  bed.  When  quiet,  he  did 
not  suffer  greatly  from  pain,  and  after  that  period  he  began  to  walk  about, 
though  with  great  difficulty,  but  did  not  resume  business  in  his  office  for  a 
period  of  three  months  thereafter ;  and  at  the  time  of  the  ti'ial,  thirteen  months 
after  the  accident,  he  was  still  feeling  some  pain  and  inconvenience.  Under 
these  circumstances,  it  was  held  that  if  such  temporary  confinement  and  pain 
were  the  only  consequences  of  the  injury,  a  verdict  of  $5,000  should  be  regarded 
as  excessive.  The  proof,  however,  was  conflicting  as  to  whether  the  plaintiff 
was  injured  in  the  membraneous  covering  of  the  spine,  or  merely  in  the  muscu- 
lar ligaments  connected  with  it.  There  was  evidence  from  which  a  jury  might 
conclude  that  the  plaintiff  would  never  entirely  recover,  the  attending  physician 
and  two  others  testifying  that,  in  their  opinion,  any  future  imprudence  or  un- 
usual exposure  might  lead  to  very  serious,  and  even  fatal,  results.  The  verdict 
was  therefore  permitted  to  stand.''  In  another  case  of  this  character,  $6,900 
was  deemed  to  be  excessive  damages  where  the  injuries  consisted  of  a  variety 
of  bruises  about  the  head  and  shoulders,  —  none  of  them  being  of  a  serious 
character,  —  a  scalp-wound  which  readily  healed,  and  a  shock  to  the  nervous 
system.  The  plaintiff,  shortly  after  the  accident,  admitted  that  she  was  not 
seriously  injured,  and  commenced  her  avocation  of  teaching  two  or  three 
months  afterwards.* 

The  court  thought  that  a  verdict  of  $11,000  should  be  reduced  to  $5,000  as 
compensation  for  the  following  injuries:  The  plaintiff  was  somewhat  injured 
about  the  head,  but  more  seriously  upon  the  foot,  a  portion  of  which  had  to  be 
amputated.  After  the  accident,  the  plaintiff  became  so  seriously  ill  that  his  life 
was  despaired  of.  He  remained  at  the  station  to  which  he  was  conveyed  subse- 
quent to  the  accident,  for  a  period  of  three  months.  At  the  expiration  of  this 
time  the  wounded  limb  was  not  entirely  healed,  and  in  this  particular  the  plain- 
tiff was  crippled  for  life.*  So,  the  court  ordered  the  damages  to  be  reduced 
from  a  verdict  of  $6,000  to  $4,000,  where  the  plaintiff's  leg  was  broken  and 
some  flesh-wounds  were  received  upon  the  head  during  a  collision  of  trains. 

1  New  Orleans  etc.  R.  Co.  v.  Statham,  42  s  Sawyer  v.  Hannibal  etc.  R.  Co.,  37  Mo. 

Miss.  607.  240. 

-  Pittsburgh  etc.  R.  Co.  v.  Thompson,  56  ^  Collins  v.  Albany  etc.  R.  Co.,  12  Barb. 

111.138.  492. 


DAMAGES QUANTUM    OF. 


583 


Gettin";  on  and  off  Train. 


The  plaintiff  was  confined  to  his  house  for  about  five  months,  and  obliged  to  go 
upon  crutches  for  three  or  four  months  afterwards;  and  the  injured  limb,  when 
healed,  was  somewhat  shorter  than  the  other,  though  the  muscles  were  well 
developed  and  the  plaintiff  was  restored  to  his  wonted  health.^ 

A  verdict  of  $5,000  damages  was  held  to  be  excessive  where  the  plaintiff  lost 
only  one  month's  time  in  his  business,  and  the  injuries  consisted  of  a  straining 
of  the  ligaments  of  a  finger  of  the  right  hand,  resulting  in  some  loss  of  power 
in  the  limb,  some  slight  bruises,  and  a  weakening  of  one  lung,  rendering  the 
plaintiff  more  liable  to  pulmonary  attacks. - 

In  an  action  for  the  breaking  of  the  plaintiff's  arm,  the  jury  awarded  exces- 
sive damages,  which  the  trial  court  required  the  plaintiff  to  reduce  by  a  remitti- 
tur to  §2,500.  The  Supreme  Court  of  Illinois  considered  this  to  be  a  large 
award  for  the  injury  in  question,  but  was  not  prepared  to  say  that  the  judgment 
ought  to  be  reversed  on  this  account.'  On  the  contrary,  the  Canadian  Court  of 
Queen's  Bench  held  that  a  new  trial  ought  to  be  granted  in  a  case  where  the 
record  showed  that  a  verdict  of  $2,000  had  been  rendered  for  the  breaking  of 
the  plaintiff's  right  arm,  upon  the  testimony  of  persons  who  were  not  physi- 
cians. One  witness  testified  that  the  plaintiff  remained  four  weeks  and  a  half  at 
his  house  after  the  accident,  which  occurred  on  the  8th  of  January;  that  he  was 
attended  by  two  physicians;  that  he  suffered  greatly,  and  required  attention 
night  and  day;  that  the  plaintiff's  arm  was  in  a  sling  a  month  after  he  left  the 
house  ;  that  the  injured  arm  was  a  great  deal  smaller  than  the  other;  that,  in  the 
opinion  of  the  witness,  at  the  time  of  the  trial  the  arm  was  useless.  Another 
witness  testified  that  the  plaintiff  carried  his  arm  in  a  sling  until  February ;  that 
the  right  arm  was  of  little  use ;  that  the  plaintiff  used  his  left  arm  because  the 
right  arm  was  paralyzed.* 

(7.)  For  Injury  to  Passenger  getting  on  or  off  a  Bailroad  Train.  —  A  pas- 
senger paid  his  fare  to  a  small  station,  which  was  a  wood  and  water  station 
only,  and  the  conductor  agreed  to  put  him  off  there.  When  the  train  got  to 
the  place  it  did  not  stop,  but  slackened  up  to  allow  him  to  jump  off;  but  the 
passenger,  being  a  heavy  man,  was  afraid  to  get  off,  and  went  forward  and  told 
the  conductor,  who  angrily  blamed  him,  and  who  again  slackened  the  train, 
whereupon  he  got  off.  In  doing  so  he  injured  his  ankle;  and  the  jury,  in  an 
action  for  damages  against  the  railroad  company,  gave  a  verdict  in  his  favor 
for  the  sum  of  $500.  It  was  held  that  the  amount  was  not  excessive.^  In 
an  action  by  a  passenger  against  a  railroad  company,  it  appeared  that  the 
plaintiff,  a  physician  of  thirty  years'  standing,  while  on  the  defendant's  car  at  a 
station  where  the  train  was  waiting  for  the  arrival  of  another  train  on  a  con- 
necting road,  and  which  the  plaintiff  intended  to  take  to  continue  his  journey, 
liad  occasion  to  step  out  of  the  car,  and  in  doing  so  he  fell  into  a  ditch 
or  sewer  nine  or  ten  feet  deep  below  the  step  of  the  car,  and  broke  his  leg 
and  was  otherwise  injured.  The  car  was  standing  at  or  near  the  usual  place  of 
receiving  and  putting  off  passengers ;  it  was  at  night ;  there  were  no  stationary 

'  Clapp  «.  Hurison  etc.  R.  Co.,  19  Cari).  jm.  <  Watson    v.  Xortheni   K.  Co.,  24  Upper 

2  TTiiion  Paeillc  R.  Co.  v.  Hiiiul,  7  Kan.  3S0.  Canada  Q.  B.  08. 

3  Chicago  etc.  R.  Co.  v.  Pomirom,  .51  III.  "  Georgia  etc.  U.  Co.  v.  SlcUurtly,  4.5  Ga. 
8;3.    See  also  Chicago  etc.  li.  Co.  »'.  Hughes,  288. 


Bi)  111.  170;  Walker f.  Erie  K.  Co.,  6a  Barb.  -itiO. 


584  REMEDIES,    PROCEDURE,    AND    DAMAGES. 


Notes. 


lights,  and  there  were  rocks,  timbers,  and  oyster-shells  in  the  bottom  of  the 
ditch  into  which  he  fell.  The  plaintiff  used  due  care  and  caution  in  going  down 
the  car-steps,  and,  when  he  stepped  off  the  last  car-step,  expected  to  put  his 
feet  on  the  ground  instead  of  stepping  into  the  ditch,  of  which  he  had  no  knowl- 
edge. The  conductor  of  the  defendant's  train  had  known  of  the  existence  of  the 
ditch  for  three  years ;  it  was  afterwards  filled  up  befoi'e  the  trial.  The  court 
refused  to  disturb  a  verdict  for  the  plaintiff  for  §10,000. ^  The  plaintiff,  ou 
attempting  to  get  on  a  train  at  midnight  at  the  defendants'  depot,  fell  through  :i. 
bridge  which  was  under  the  control  of  the  defendants,  which  was  undergoing; 
repairs  and  was  through  their  negligence  left  uncovered.  The  injuries  thu- 
occasioned  were  of  a  permanent  character,  leaving  him  a  cripple  for  life. 
He  had  suffered  pain  and  anguish,  and  been  involved  in  large  expenditure- 
of  money,  but  the  evidence  failed  to  disclose  any  wantonness  or  wilfulness  on 
the  part  of  the  company.  A  verdict  of  f  25,000  was  regarded  as  grossly  excessive, 
and  the  judgment  was  reversed.''  It  appeared  in  an  action  by  the  plaintiff,  a 
married  lady,  that  she  was  a  passenger  on  defendant's  train,  and  on  reaching 
her  destination  attempted  to  get  off,  but  the  cars  did  not  stop  more  than  a 
minute;  that  when  the  signal  Avas  given  she  started,  with  her  child  and  some 
bundles,  for  the  door,  and  meeting  some  persons  coming  on  the  cars  she  could 
not  immediately  get  down  the  steps ;  that  before  she  could  get  off,  the  cars  were 
in  motion,  and  she  jumped  off,  and  fell  on  the  platform  and  was  injured.  The 
jury  found  a  verdict  for  $4,000  damages,  Avhich  was  reduced,  on  the  suggestion 
of  tlus  trial  court,  to  $2,500.  The  court  above  refused  to  interfere,  as  the 
amount  of  the  judgment  was  satisfactory,  after  the  remittitur,  to  the  judge  who 
tried  the  case.^  Where  the  plaintiff,  iu  order  to  get  on  a  train,  had  to  cross  ove]' 
a  railroad  track  at  night  at  a  place  where  the  track  was  usually  crossed,  there 
being  no  way  of  reaching  the  depot  except  by  crossing  a  track,  was  run  over  by 
a  train  backing  up  which  had  no  head-light  and  which  did  not  ring  the  bell 
nor  sound  its  whistle  to  give  warning  of  its  approach,  and  his  foot  crushed  so 
that  his  leg  had  to  be  amputated,  a  verdict  for  $8,000  damages,  although  thought 
by  the  appellate  court  to  be  large,  was  not  disturbed,  but  the  julu-iueut  thereon 
was  afflrined.+ 

(8.)  Fur  Injury  to  Passenger  by  Accident  to  Stage-Coach. — Where  a  stage-coach, 
tlirough  the  negligence  of  the  driver,  fell  over  a  ledge  down  a  ravine,  and  a  pas- 
senger was  very  severely  and  dangerously  injured,  having  his  lower  jaw  broken 
in  three  places,  the  upper  jaw  separated  from  its  bony  attachment,  his  right 
slioulder  dislocated  and  the  right  shoulder-blade  broken,  his  skull  fractured,  his 
face,  mouth,  and  body  bruised,  contused,  and  wounded,  and  his  injuries  were  of 
so  serious  a  character  as  to  render  him  entirely  insensible  for  a  considerable 
time,  and  to  render  his  recovery  doubtful,  and  were  such  as  to  require  the 
removal  of  portions  of  the  lower  jaw  and  to  produce  a  great  and  permanent 
disfigurement ;  and  it  also  appeared  that  before  the  accident  the  passenger,  who 
was  a  laborer  by  occupation,  was  a  strong,  healthy  man,  but  that  up  to  the  time 
of  the  trial,  more  than  a  year  after  the  accident,  lie  had  not  acquired  the  ordinary 
use  of  the  lower  jaw,  his  right  shoulder  and  arm  were  stiff  and  weak,  and  his 

I  Montgomery  etc.  R.  Co.  v.  Boring,  51  Ga.  '  Lloyd  v.  Hannibal  etc.  R.  Co.,  53  Mo.  509. 

682.  ■»  Whalen  v.  St.  Louis  etc.  R.  Co.,  60  Mo. 

■  Chicago  etc.  R.  Co.  v.  Fillmore,  57  111.  265.        323. 


DAMAGES QUANTUM    OF.  585 


Accidents  to  Stage-Coaches. 

right  hand  partially  paralyzed,  being  unable  to  perlorm  any  labor  except  with  his 
left  hand,  and  the  injuries  were  of  such  a  character  as  to  permanently  impair 
his  capacity  for  laborious  pursuits,  — it  was  held  that  a  verdict  of  $10,500  would 
not  be  set  aside. ^  In  an  action  against  a  proprietor  of  a  stage-coach  for  the  neg- 
ligence of  the  driver  whereby  the  coach  was  overturned  and  the  plaintiff  was 
injured,  it  appeared  that  the  head  of  the  plaintiff  was  severely  cut,  and  one  of 
his  legs  badly  broken,  —  the  smaller  bone  protruding  through  his  clothing  and 
boot.  He  was  confined  at  a  house  near  the  place  of  the  accident  for  six  months, 
during  which  time  he  suffered  very  severely,  and  for  a  part  of  the  time  was 
occasionally  delirious.  At  the  time  of  the  trial,  which  was -a  year  after  the 
occurrence,  his  leg  was  not  entirely  healed  and  was  shortened;  the  ankle-joint 
was  swollen  and  stiff  and  he  was  obliged  to  use  crutches,  and  the  physician 
who  attended  him  expressed  the  opinion  that  the  joint  would  continue  to  be 
stiff,  and  he  would  be  a  cripple  for  life.  He  was  also  subjected  to  considerable 
expense,  having  paid  his  physician's  bill  of  $280,  and  to  the  man  at  whose  house 
he  was  confined,  $154.12.  The  jury  gave  a  verdict  in  his  favor  of  $9,000,  which 
the  court  refused  to  set  aside,  and  the  court  above  afllrmed  the  judgment 
thereon.''' 

1  Boyce  V.  California  Stage  Co.,  25  Cal.  *  Farish  v.  Reigle,  11  Gratt.  697. 

460. 


INDEX. 


ABATEMENT  OF  ACTIONS, 

in  suits  against  carriers,     p.  546, 

ABSENCE  FEOM  CONVEYANCE, 

temporary  absence  of  passenger  from  the  conveyance  does  not  sever  the  rela- 
tion of  carrier  and  passenger,    p.  50. 

ACCIDENT,    (See  Negligence.) 

carrier  not  answerable  for  mere  accident.     Christie  v.  Origgs,  p.  181. 

ACCOMMODATIONS, 

duty  of  railway  companies  to  provide  reasonable  accommodations  for  passen- 
gers at  their  stations.     McDonald  v.  Chicago  etc.  R.  Co.,  p.  93. 

duty  of  carriers  of  passengers  by  sea  as  to  the  accommodations  of  passengers, 
p.  468. 

ACTIONS,    (See  Pleading;  Procedure.) 

ACTIONS  EX  DELICTO,     {See  Procedure.) 

ADMIRALTY, 

courts  of,  have  jurisdiction  over  torts  of  passengers  upon  the  high  seas. 
Chamberlain  v.  Chandler,  p.  459. 

over  contracts  for  the  carriage  of  passengers  by  sea.     p.  467. 
and  upon  other  navigable  waters,    pp.  543,  544. 

ADVERTISEMENT,     [See  Time-Table.) 

ALLEGATA  ET  PROBATA, 

variance  between  pleading  and  proof  in  actions  against  carriers,     pp.  554-556. 

ARM  OUT  OF  WINDOW, 

whether  riding  on  a  railway  car  with  arm  out  of  window  is  contributory  negli- 
gence,   p.  257. 

ASSAULTS  UPON  PASSENGERS, 

by  other  passengers ;  liability  of  the  carrier  for.     pp.  303-305. 
liability  of  carriers  for  assault  upon  passengers  by  their  servants,     pp.  352-377. 
this  liability  arises  out  of  the  contract  of  carriage,  but  does  not  depend 
upon  whether  the  servant  was  acting  within  the  scope  of  his  employ- 
ment or  not.     Pendleton  v.  Kinsley,  p.  362. 
the  carrier  liable  for  the  misconduct  of  his  employee,  whether  arising 
from  malice  or  neglect.     Ibid. 

no  defence   that  the  carrier  did   not  authorize   the   acts   of  his 
employee.     Ibid. 
whether  the  carrier  is  liable  for  the  wanton  and  malicious  trespasses  of 
his  servants,     p.  363. 

^587) 


588  INDEX. 


ASSAULTS  UPON  PASSENGERS  —  Continued. 

cases  which  hold  the  carrier  liable  only  when  the  servant  was  acting 
within  the  scope  of  his  emploj^ment.     p.  366. 

authority  of  the  servants  of  the  carrier  to  make  arrests,     p.  371. 

risume  of  the  circumstances  which  will  justify  an  ejection  of  the  pas- 
senger,    p.  375. 

whether  person  may  be  ejected  from  a  railroad  train  at  other  places 
than  at  a  station,     p.  377. 

English  cases  holding  carriers  not  responsible  for  unauthorized  assaults 
by  their  servants,     pp.  371-373. 

quantum  of  damages  for  assaults  upon  passengers  by  carrier's  servants, 
p.  580. 

ASSIGNMENT, 

right  of  action  for  loss  of  baggage  assignable,    p.  538. 

ASSUMPSIT, 

lies  against  carrier  for  personal  injuries.     McCall  v.  Forsyth,  p.  541 ;  note,  p. 
544. 

AXLE,     {See  Latent  Defects.) 

liability  for  an  injury  caused  by  the  breaking  of  an  axle  on  account  of  frost, 
n.  216. 


BAGGAGE, 

of  passengers  by  water;  general  rule  in  respect  to.     p.  471. 

act  of  Congress  limiting  liability  of  ship-owner  for  loss  of.    p.  530. 

duty  of  passenger  in  respect  of,  during  transit,     p.  530. 

duty  of  passenger  to  claim,  on  arrival  at  port.     p.  471. 

passenger  may  require  his  baggage  to  be  deposited  in  a  suitable  place  while  at 
sea.     p.  472. 

carriers  of  passengers  are  responsible  as  common  carriers  for  the  baggage  of 
passengers.     Hollister  v.  Nowlen,  p.  489 ;  note,  p.  520. 

right  of  carrier  to  extra  compensation  for  baggage  of  peculiar  value.     New 
Fork  etc.  R.  Co.  v.  Fraloff,  p.  502. 

fraud  of  passenger,  in  concealing  among  his  baggage  articles  of  great  value,  dis- 
charges carrier.     Id.,  p.  503. 

in  the  absence  of  fraud,  passenger  not  bound  to  disclose  value  of  baggage.    Id., 
p.  503. 

what  is  baggage.     Id.,  p.  503. 

whether  a  passenger  has  carried  excess  of  articles  in  his  baggage  a  question  of 
fact.     Id.,  p.  503. 

what  is  baggage  a  mixed  question  of  law  and  fact.     p.  510. 

articles  which  cannot  be  considered  baggage,     p.  511. 

articles  which  are  comprehended  in  the  term  "baggage."     p.  512. 

custody  of  the  baggage ;  booking  and  checking,     p.  513. 

theft  of  baggage  under  the  personal  control  of  the  passenger,     p.  515. 

articles  received  in  another  capacity  than  as  a  carrier,     p.  519. 

responsibility  for  extra  baggage,     p.  522. 

baggage  of  gratuitous  passengers,     p.  524. 

lien  of  the  carrier  upon  the  passenger's  baggage  for  passage-money,     p.  624. 

liability  of  carrier  who  carries  baggage  only.     p.  524. 


INDEX.  589 


BAGGAGE  —  Continued. 

contracts  limiting  the  liability  of  the  carrier  for  the  loss  of  baggage.     Hollis- 
terv.  Nowlen,  p.  489;  notes,  pp.  471,  525. 
notices  limiting  such  liability,     p.  526. 
provision  under  this  head  of  the  English  Railway  and  Canal  Traffic  Act. 

p.  526. 
what  will  constitute  a  sufficient  notice,     p.  526. 

exception  under  the  Railway  and  Canal  Traffic  Act  in  case  of  excursion 
trains,     p.  528. 
regulations  of  the  carrier  in  respect  of  baggage.     HoUister  v.  Nowlen,  p.  489 ; 
New  York  etc.  R.  Co.  v.  Fraloff,  p.  502 ;  note,  p.  529. 
notice  to  the  passenger  of  such  regulations,     p.  529. 
liability  of  sleeping-car  companies  for  the  loss  of  baggage  and  valuables,     p. 

530. 
duty  of  the  carrier  to  deliver  baggage  safely,     p.  532. 
duty  of  the  carrier  to  afford  facilities  for  the  delivery  and  storage  of  baggage 

at  destination,     p.  534. 
liability  of  the  carrier  where  baggage  is  delivered  upon  a  forged  order,     p.  536. 
measure  of  damages  in  actions  for  loss  of  baggage,     p.  536. 
actions  for  loss  of  baggage ;  procedure  and  evidence  in.     pp.  537-539. 
parties  to  the  action,     p.  537. 
form  of  the  action,     p.  538. 
competency  of  the  plaintiff  as  a  witness  to  show  the  contents  of  the 

baggage,     p.  538. 
burden  of  proof  in  such  actions,     p.  539. 
declarations  of  the  carrier's  servants,     p.  539. 

BAGGAGE-CAR, 

whether  riding  in  the  baggage-car  of  a  passenger-train  is  contributory  negli- 
gence,   p.  262. 

BARKEEPER, 

lessee  of  the  bar  on  a  steamboat,  when  deemed  a  passenger,     p.  46. 

BERTHS, 

rights  of  passengers  upon  steamboats,  inter  se,  as  to  berths,     p.  474. 

BOOKING, 

booking  baggage,     p.  513. 

BROKEN  AXLE,     {See  Latent  Defects.) 

BROKEN  RAIL,     (See  Latent  Defects.) 

railway  carrier  not  liable  for  the  breaking  of  a  sound  rail  in  consequence  of 
extreme  frost,     p.  220. 

BROKEN   WHEEL,     {See  Latent  Defects.) 

BURDEN   OF  PROOF.     {See  Evidence.) 


CABIN  PASSENGERS, 

entitled  to  what  accommodation  and  treatment,     p.  469. 

CARRIER  OF  PASSENGERS, 

who  is  a  common  carrier  of  passengers,     pp.  26-28. 

street  railway  companies  are  carriers  of  passengers,     p.  442. 


590  INDEX. 


CAKREER  OF  'PASS'E,l>iG'EKS—  Continued. 

dutj'  of  carrier  to  receive  and  carry  passengers,     pp.  26-30. 
obligation  to  receive  and  carry,     pp.  1-30. 

when  the  relation  of  carrier  and  passenger  subsists,     pp.  81-52. 
obligation  to  carry  according  to  advertisement  or  contract,     pp.  53-71. 
obligation  to  furnish  safe  and  convenient  stations  and  approaches,     pp.  72-110. 
liability  for  negligence,     pp.  111-242. 
regulations  of.     pp.  306-351. 

liability  for  assaults  upon  passengers  by  his  servants,     pp.  352-377. 
liability  for  personal  injuries  limited  by  contract,     pp.  878-402. 
liability  for  consequential  injuries  to  passenger  where  another's  means  of  trans- 
portation are  used.     pp.  403-418. 
liability  for  damage  to  passenger  through  fault  of  connecting  lines,     pp.  419- 

437. 
Btreet-railroad  companies.     438-447. 
carrier  of  passengers  by  water,     pp.  448-487. 
liability  of,  in  respect  of  passenger's  baggage,     pp.  448-539. 
what  will  excuse  the  carrier  from  receiving  and  carrying,     pp.  2-28. 

want  of  room.     p.  29. 

non-payment  of  fare.     p.  29. 

that  the  passenger  has  been  before  rightfully  expelled,     pp.  22,  30. 

CARRYING   BEYOND  DESTINATION, 

quantum  of  damages  allowed  for;  illustration,     p.  581. 

CASE,     {See  Pleading.) 

CHARACTER, 

when  the  character  and  circumstances  of  the  plaintiflF  are  an  element  of  dam- 
age,    p.  571. 

CHECKING, 

checking  baggage,    p.  513. 

CIVIL-RIGHTS   LAW, 

provisions  of,  declaring  all  persons  entitled  to  equal  accommodations  on  public 
conveyances,     p.  347. 

constitutionality  of  the  act  denied,     p.  347. 
views  of  Erskine,  J.,    p.  348. 

CLASSIFICATION   OF  PASSENGERS, 

right  of  carrier  to  adopt  regulations  for  the  separation  of  passengers  into 

separate  vehicles,     pp.  345,  350. 
classification  according  to  sex.     p.  345. 
according  to  color,     p.  346. 

COLLISIONS   OF  VESSELS, 

parties  to  actions  in  case  of  injuries  to  vessels  from  collisions,     p.  475. 

COLORED  PERSONS, 

right  of  carrier  to  exclude  from  the  cabin  of  a  steamboat.     Day  v.  Owen, 

p.  306. 
power  of  carrier  to  separate  colored  persons  from  other  passengers,     p.  346. 
quantum  of  damages  for  refusing  to  permit  colored  persons  to  ride  in  par- 
ticular cars.     p.  580. 

COMMON   CARRIER,     {See  Carrier.) 


INDEX.  591 


CONCURRENT  NEGLIGENCE, 

of  the  carrier  and  a  third  person,  injuring  the  passenger.     (See  Imputed  Neo- 

LIGENCE.) 

of  the  carrier  and  a  passenger,  injuring  another  passenger.     (See  Imputed 

Negligence.) 
of  the  passenger  and  the  carrier.     {See  Contributory  Negligence.) 

CONDUCT   OF   DEPENDANT, 

when  admissible  in  evidence,    p.  558. 

CONDUCT  OF  OTHER  PASSENGERS, 

whether  admissible  in  evidence,     p.  557. 

CONDUCTORS, 

of  street-railway  cars;  duty  of,  to  passengers  when  alighting,    p.  443. 

CONDUCTORS  OP  RAILWAY  TRAINS, 

how  far  passengers  are  excused  in  following  the  directions  of  conductors  of 

railway  trains.     Railroad  Co.  v.  Jones,  p.  248. 
represent  the  corporation,     p.  369. 
discretion  of,  in  expelling  persons  from  the  train,     p.  369. 

CONNECTING  LINES. 

obligation  to  carry  a  passenger  who  proposes  to  take  passage  with  a  rival  con- 
necting line.     Bennett  v.  Dutton,  p.  2. 
discontinuance  of  trains  on  connecting  line,  and  excuse  for  failing  to  carry 

according  to  published  time-table,     p.  53. 
liability  for  injuries  to  passengers  where  one  carrier  uses  another's  means  of 
transportation,     pp.  403-418. 

liability  of  one  railroad  company  for  an  injury  to  a  passenger  upon 
the  track  of  a  connecting  line.  Great  Western  R.  Co.  v.  Blake,  p. 
403. 
liability  of  a  railway  company  for  injury  to  their  own  passengers  through 
the  negligence  of  another  company  using  their  track.  McElroy  v. 
Nashua  R,  Corp.,  p.  409. 
general  statement  of  liability  where  one  carrier  makes  use  of  another's 

means  of  transportation,     p.  412. 
the  carrier  receiving  the  passenger  is  chargeable  with  negligence  of  the 

company  whose  line  is  used.     p.  412. 
rule  where  one  carrier  uses  the  line  of  another  by  statutory  authority. 

p.  415. 
parties  to  actions  in  such  cases,     p.  417. 

application  of  the  doctrine  respondeat  superior  in  such  cases,     p.  417. 
the  carrier  who  sells  a  ticket  over  a  connecting  line  is  liable  for  the  default  of 
the  owner  of  such  line.     Caadee  v.  Pennsylvania  R.  Co.,  p.  419. 

a  modified  rule;  the  liability  to  be  determined  by  the  contract  of  trans- 
portation.    Quimby  v.  VanderbUt,  p.  423. 
liability  of  a  carrier  who  makes  a  contract  for  tran-jportation  over  lines  not  his 

own.     p.  431. 
doctrine  that  a  through-ticket  is  a  distinct  contract  of  each  carrier,     p.  433. 

liability  of  the  carrier  on  whose  line  the  loss  or  injury  occurred,    p.  434. 
partnership  of  carriers,     p.  4.36. 

limitation  of  the  carrier's  liability  by  contract  or  notice  for  losses  occur- 
ring on  other  lines,     p.  437. 


592  INDEX. 


CONSIDERATION, 

the  confidence  induced  by  undertaking  any  service  for  another,  as  to  carrying 
him  without  his  paying  fare,  is  a  sufficient  legal  consideration  to  create  a 
duty  in  performing  it.     Philadelphia  etc.  R.  Co.  v.  Derby,  p.  31. 

pecuniar}'  consideration  not  necessarj'  to  create  an  obligation  to  carry  safely. 
Ibid. ;   Steamboat  New  World  v.  King,  p.  175. 

negligence  in  persons  exercising  skill.     Steamboat  New  World  v.  King,  p.  175- 

CONSTITUTIONAL  LAW,     {See  Civil-Eights  Law.) 

statute  of  Louisiana  prohibiting  carriers  from  making  discrimination  of  color, 
unconstitutional,     p.  346. 

CONTRACT  OF  CARRIAGE,     (^^ee  Ticket;  Excursion  Ticket.) 

liability  of  a  carrier  for  failure  to  transport  the  passenger  according  to  the 
terms  of  the  contract  of  carriage,     p.  65. 

failure  of  vessel  to  land  and  take  on  passengers,     pp.  65,  66. 

liability  for  carrying  a  passenger  beyond  his  destination,     p.  66. 

obligation  of  passenger  to  ascertain  what  train  will  stop  at  his  destination,  p. 
66. 

obligation  of  carrier  to  furnish  passenger  with  a  seat.     p.  67. 

duty  of  carrier  by  water  to  convey  passenger  to  the  port  to  which  he  has  con- 
tracted to  carry  him.     p.  465. 

rules  which  apply  in  the  construction  of  contracts  for  the  carriage  of  passen- 
gers by  sea.     p.  467. 

CONTRACTOR, 

negligence  of  contractors  who  construct  or  repair  the  carrier's  vehicles,  road- 
bed, and  other  physical  appliances,  imputable  to  the  carrier,     pp.  220-222. 

carrier  liable  for  an  injury  to  a  passenger  in  consequence  of  one  of  its  con- 
tractors engaging  in  work  near  the  track,     p.  222. 

CONTRACTS   LIMITING  LIABILITY, 

contracts  limiting  the  liability  of  carriers  for  personal  injuries  to  passengers. 
pp.  378-402.  .         ' 

right  of  the  carrier  of  passengers  to  stipulate  against  liability  for  personal 
injuries.     Railway  Co.  v.  Lockwood,  p.  378. 

cannot  stipulate  against  liability  for  negligence.     Ibid. 
such  a  stipulation  in  a  drover's  pass,  void.     Ibid. ;  note,  p.  400. 
validity  of  contracts    limiting   the  liability,  of  carriers  to  passengers 
travelling  upon  free  passes,     p.  399. 

what  negligence  is  covered  by  such  a  release,     p.  402. 
contracts  and  notices  limiting  the  liability  of  carriers  for  losses  and  injuries 

happening  upon  connecting  lines,     p.  437. 
power  of  carrier  to   limit  liability  for  baggage  by   contract.     Hollister  v. 

Nowlen,  p.  489. 
for  loss  of  passengers'  baggage,     pp.  471,  525. 
notice  limiting  such  liability,     p.  526. 

CONTRIBUTORY  NEGLIGENCE, 

passenger  leaping  from  stage-coach  under  an  impulse  of  fear  produced  by  a 
sudden  peril,  not  chargeable  with  contributory  negligence.  Ingalls  v.  Bills, 
p.  112  ;  Stokes  v.  Saltonstall,  p.  183 ;  Jones  v.  Boyce,  p.  240. 

of  passenger  in  attempting  to  board  train  at  a  station  where  a  train  does  not 
stop.     p.  226. 


INDEX.  593 


OONTKIBUTORY  NEGLIGENCE  —  Continued. 

passenger  injured  while  upon  the  railway  track,     p.  233. 

the  doctrine  of  contributory  negligence  stated  and  applied  to  the  carriage  of 
passengers.     Morrissey  v.  Wiggins  Ferry  Co.,  p.  243. 

the  doctrine  that  there  can  be  no  recovery  where  a  passenger  is  in  the 

least  fault,  denied.     Ibid. 
if  the  passenger's  negligence  was  the  remote  and  the  carrier's  negligence 

the  immediate  cause   of  the   accident,  the  passenger  may  recover. 

Ibid. 

whether,  notwithstanding  the  imprudence  of  the  passenger,  the 
carrier  could  have  avoided  the  injur}',  a  question  for  the  jury. 
Ibid. 
instances  of  contributory  negligence  on  the  part  of  the  passenger,    pp.  246, 
257-270. 

leaping  from  stage-coach  which   seems   about  to   overturn.     Jones   v. 

Boyce,  p.  246 ;  Stokes  v.  Saltonstall,  p.  183 ;  Ingalls  v.  Bills,  p.  112. 
riding  on  the  pilot  of  a  locomotive.     Railroad  Co,  v.  Jones,  p.  248. 
leaping  from  a  railway  train  while  in  motion.     Railway  Co.  v.  Aspell, 

p.  252. 
riding  on  a  railway  train  with  arm  out  of  window,     pp.  257,  258. 
riding  upon  the  platform  of  a  railway  car.     pp.  259-261. 
riding  upon  the  platform  of  a  street-railway  oar.     p.  261. 
riding  in  a  baggage-car.     p.  262. 
standing  in  the  passage-waj'  of  a  car.     p.  263. 
leaning  against  the  side  door  of  an  English  railway  car.     p.  263. 
injury  while  endeavoring  to  shut  the  door  of  an  English  railway  car. 

p.  263. 
riding  with  hand  upon  the  frame-work  of  the  door  of  a  railway  car,  and 

injured  by  the  door  being  shut.     p.  264. 
injury  while  attempting  to  pass  from  one  car  to  another  by  the  direction 

of  a  servant  of  the  company,     p.  2')4. 
drover  riding  on  the  top  of  the  train,     pp.  265,  266. 
passenger  standing  under  a  suspended  boat  on  a  steamboat,     p.  266. 
rushing  back  into  burning  train  to  recover  baggage,     p.  266. 
leaping  off  railway  cars  while  in  motion,     pp.  227,  228,  266. 
alighting  at  an  improper  place,     pp.  232,  233. 
running  alongside  a  moving  train  and  endeavoring  to   climb  upon  it. 

p.  267. 
leaping  from  a  street  car  while  in  motion,     pp.  268,  444. 
leaving  train  in  the  night  and  walking  into  an  open  cattle-guard,     p.  269. 
falling  into  other  dangerous  places  in  leaving  trains  at  night,     p.  269. 
leaving  trains  by  an  unusual  and  unprovided  way.     pp.  269,  270. 
passing  over  railway  track  in  leaving  train,     p.  269. 
care  exacted  of  passengers  in  Massachusetts  while  on  the  company's 

track,     p.  269. 
getting  upon  a  street  car  from  the  side  upon  which   there  is  another 

track,     p.  444. 
standing  upon  the  front  plat  form  of  a  street  car.      Wilton  v.  Middlesex 

R.  Co.,  p.  438;  Burns  v.  Bellefoninine  R.  Co.,  p.  441 ;  note,  p.  444. 
getting  on  and  off  street  car  by  the  way  of  the  front  platform,     p.  445. 
riding  in  a  street  car  with  arm  out  of  window,     p.  446. 

38 


594  INDEX. 


CONTRIBUTORY  NEGLIGENCE  —  Continued. 

pedesti'ian  crossing  over  the  platform  of  a  street  car  when  a  car  obstructs 

the  passage  of  street,     p.  447. 
attempting  to  crawl  through  a  freight-train  which  blocks  up  the  way. 
p.  270. 
contributory  negligence  of  passengers  laboring  under  disabilities,     pp.  270-272. 
duty  of  the  carrier  toward  such  passengers,     pp.  270-272. 
putting  a  lunatic  off  the  train,  who  was  subsequently  killed  by  being  run 

over  by  another  train,     p.  271. 
-degree  of  care  due  to  passengers  who  are  intoxicated,     p.  271. 
care  required  of  passengers  of  defective  eyesight,     pp.  271,  272. 
no  excuse  that  the  impaired  faculties  of  the  passenger  materially  con- 
tributed to  injuries  received  in  consequence  of  the  carrier's  negligence, 
p.  272. 

CORPORATIONS, 

measure  of  damages  in  case  of,  same  as  in  case  of  persons,    p.  570. 
liable  for  exemplar}'  damages,     p.  575. 

COUNTS,     {See  Pleading.) 

COURT  AND  JURY,     [See  Law  and  Fact.) 

DAMAGES, 

damages  recoverable  for  future  pain  and  suffering.     Curtis  v.  Rochester  etc.  R. 

Co.,  p.  189. 
measure  of  damages  for  expulsion  of  passenger  from  railway  train.     Chicago 

etc.  R.  Co.  V.  Parks,  p.  319. 
measure  of  damages  in  actions  for  loss  of  baggage,     p.  536. 
the  fair  market  value  of  the  property,     p.  536. 
expenses  incurred  in  the  search,     p.  537. 
interest  on  the  damages,     p.  537. 
Iowa  statute  imposing  penalty  of  three  dollars  a  day  where  traveller  is  de- 
tained,    p.  537. 
difference  in  measure  of  damages  between  actions  ex  contractu  and  actions 

ex  delicto,     p.  545. 
how  pleaded,     p.  550. 

special  damages  must  be  alleged,     p.  550. 
all  damages,  present  and  prospective,  may  be  recovered,     p.  564. 
damages  in  case  of  permanent  injury,     p.  565. 
computation  of  damages  from  life-tables,     p.  565. 
damages  must  be  obvious,  and  not  conjectural  or  speculative,     p.  565. 
enhancement  of  damages  by  the  subsequent  conduct  of  the  party  injured,     p. 
565. 

as  where  a  passenger  is  not  taken  on  board  a  train,  and  walks  to  his  des- 
tination,    p.  565. 
whether  sickness  or  other  injuries  incurred  by  the  passenger  in  consequence  of 
not  being  carried  to  his  destination,  or  being  unlawfully  put  off  the  carrier's 
vehicle,  constitute  an  element  of  damages,     pp.  566-670. 
damages  for  expulsion  from  ship.     p.  567. 
damages  for  failure  or  refusal  to  carry,     p.  568. 
damages  for  delays  in  making  transit,     p.  569. 
loss  of  customers  and  injuries  to  business,     p.  568. 


INDEX.  595 


DAMAGES  —  Continued. 

damages  for  wrongful  expulsion  of  passengers,     pp.  561,  570. 

damages  for  refusal  to  furnish  cars  for  excursion  parties,  according  to  contract. 

p.  570. 
the  same  rules  of  damages  applied  to  corporations  as  to  individuals,     p.  570. 
elements  of  damage:  the  loss  of  time  —  inability  to  attend  to  business  —  pecu- 
niary expenses —  bodily  pain  —  incurable  hurt  —  personal  inconvenience  — 
mental  anguish,  etc.     pp.  570,  571. 
wealth  of  the  defendant,     p.  571. 
character  and  circumstances  of  the  plaintiflf.     p.  571. 
disfigurement  of  the  person,     p.  571. 
expenses  of  litigation,     p.  571. 
value  of  gratuitous  nursing,     p.  571. 
damages  which  may  be  recovered  by  husband  and  wife  jointly,     p.  572. 

which  parent  may  recover  for  injury  to  child,     p.  572. 
circumstances  mitigating  the  damages,     p.  572. 
exemplary  damages  may  be  awarded,  when.     p.  573. 

when  corporations  are  liable  for.     p.  575. 
questions  of  law  and  questions  of  fact,  touching  exemplary  damages,     p.  576. 
when  judgment  will  be  reversed  on  account  of  excessive  damages,     p.  576. 
illustrations  of  verdicts  for  damages  which  have  been  allowed  to  stand,  and 
which  have  been  set  aside  as  excessive,     pp.  677-585. 
for  wrongfully  ejecting  passengers,     p.  577. 
for  removing  a  passenger  from  a  train  at  a  place  not  a  regular  station. 

p.  579. 
for  refusing  to  admit  colored  passengers  to  ladies'  car.     p.  580. 
for  assaults  upon  passengers  by  the  carrier's  servants,     p.  580. 
for  carrying  passengers  beyond  destination,     p.  581. 
for  injury  to  passengers  in  railroad  accidents,     p.  582. 
for  injury  to  passengers  in  getting  on  and  off  railroad  trains,     p.  583. 
for  injury  to  passengers  by  accidents  to  stage-coaches,     p.  584. 
reduced  from  $4,000  to  $50,  for  putting  ashore  a  passenger  who  came 
on  board  to  go  to  a  city  from  whence  he  had  been  exiled  by  a  vigi- 
lance committee.     Pearson  v.  Duane,  p.  17. 

DEATH, 

pleading  under  statutes  giving  a  right  of  action  for  damages  resulting  in  death, 
p.  549. 

DECLARATIONS,     {See  Evidence.) 

DEGREE  OP  CAKE,     {See  Negligence.) 

DELIVERY, 

what  constitutes  a  delivery  of  baggage  to  the  carrier,     p.  514. 

duty  of  carrier  to  deliver  baggage  safely,     p.  532. 

what  constitutes  a  delivery  of  baggage  by  the  carrier,     p.  533. 

delivery  to  the  passenger's  agent,     p.  533. 

what  constitutes  arrival  at  destination,     p.  533. 

liability  of  the  carrier  when  the  baggage  is  carried  beyond  destination,     p.  683. 

effect  of  delivery  and  redelivery  for  safe-keeping,     p.  534. 

duty  of  carrier  to  afford  facilities  for  delivery  and  storage,     p.  534. 

duty  of  passenger  to  receive  his  baggage  at  destination,     p.  534. 

liability  of  carrier  for  unclaimed  baggage,     p.  535. 


596  INDEX. 


DELIVERY  —  Continued. 

what  is  reasonable  time  for  removal  of  baggage,     p.  535. 

within  what  time  the  passenger  must  claim  his  baggage,     p.  536. 

what,  if  a  train  arrives  on  Sunday,     p.  536. 

circumstances  excusing  the  passenger  from  claiming  baggage,    p.  536. 

delivery  of  baggage  on  a  forged  order,    p.  536. 

DEMURREll  TO  EVIDENCE, 
practice  under,     p.  563. 

DEPOTS  AND   GROUNDS,    {See  Railway  Stations.) 

DISFIGUREMENT  OF  PERSON, 
damages  for.     p.  571. 

DROVER'S  PASS, 

rights  and  immunities  of  persons  riding  upon  drover's  pass.    p.  44. 

drovers  travelling  on  passes  are  passengers  for  hire.     Railroad  Co.  v.  Loek- 

wood,  p.  878;  but  see  note,  pp.  400,  401. 
a  condition  in  such  a  pass  that  the  holder  of  it  waives  all  claims  for  damages 

for  personal  injuries,  is  void.     p.  378. 

DRUNKENNESS, 

stage  proprietor  furnishing  a  known  drunkard  for  a  driver  is  liable  for  exem- 
plary damages,     p.  239. 

DRUNKEN  PERSONS, 

railway  company  not  bound  to  receive  and  carry.     Vinton  v.  Middlesex  R.  Co., 

p.  6. 
duty  of  carrier  in  case  of  having  on  board  drunken,  disorderly,  and  dangerous 

persons,     p.  302. 

EMPLOYEES  OF  CARRIER, 

distinction  between  the  degree  of  care  which  a  carrier  owes  his  servants  and 

that  which  he  owes  his  passenger,     p.  46. 
when  deemed  a  passenger  and  when  not.     pp.  46,  47. 

servants  of  carrier  riding  from  home  to  their  work,  and  from  their  work  home, 
are  not  deemed  passengers,     pp.  46^8. 

otherwise  in  case  of  a  carpenter  employed  in  erecting  a  bridge,     pp.  48, 
49. 
emploj'ee  travelling  on  his  own  business  is  a  passenger,     p.  49. 
injured  while  riding  on  the  pilot  of  the  locomotive  cannot  recover  damsigea  of 
the  company.     Railroad  Co.  v.  Jones,  p.  248. 

EMPLOYEE'S  PASS, 

admissibility  of,  as  evidence,     p.  51. 

EQUALITY, 

of  passengers  in  respect  to  accommodations,    pp.  345-350. 

EVIDENCE, 

burden  of  proof  under  act  of  Congress  relating  to  vessels  propelled  by  steam. 

Steamboat  New  World  v.  King,  p.  175. 
breaking  of  carrier's  vehicle  priniQ,  facie  evidence  of  negligence.     Christie  v. 

Griggs,  p.  181. 
presumption  of  negligence  from  the  overturning  of  the  carrier's  vehicle,     p. 

183. 


INDEX.  597 


EVIDENCE  —  Continued. 

the  mere  fact  that  an  accident  has  happened  to  the  carrier's  vehicle,  without 
more,  held  not  primd  facie  evidence  of  negligence.  Cu7-tis  v.  Rochester  etc. 
R.  Co.,  p.  188. 

the  accident  must  he  of  such  a  nature  that  it  was  the  dujy  of  the  carrier 
to  guard  against  it.     Ibid. 

as  where  a  railway  train  runs  off  the  track.     Ibid. 
competency  of  plaintiff  to  show  contents  of  packages  of  lost  baggage,     p.  538. 
burden  of  proof  in  such  actions,     p.  539. 
declarations  of  the  carrier's  servants  in  such  action,     p.  558. 
points  of  evidence  in  actions  against  carriers,     p.  562. 

presumptions— ;5ri»ia  facie  proof  of  negligence,     pp.  209-214,  556. 

want  of  skill  in  the  carrier's  servant,     p.  556. 

declarations  of  the  plaintiff  to  his  physician,     p.  557. 

declarations  made  at  the  time  of  the  accident,     p.  557. 

conduct  of  other  passengers,    p.  557. 

conduct  of  the  defendant,     p.  558. 

statements  of  the  defendant's  servants,     p.  558. 

where  the  servant  is  the  managing  agent,  or  vice-principal,     p. 
559. 
testimony  of  experts,     p.  559. 
opinions  of  non-experts,     p.  560. 
other  matters,    p.  560. 

EXCESSIVE  DAJMAGES, 

when  appellate  courts  will  reverse  judgments  on  account  of.    p.  576. 

EXCESSIVE  FORCE, 

carrier  liable  where  his  servant,  in  executing  his  duty,  uses  excessive  force,  pp. 
378,  374. 

EXCUESION  TICKET, 

liability  of  a  railway  company  for  failing  to  bring  back  a  passenger  according 
to  the  terms  of  an  excursion  ticket  Hawcroft  v.  G-reat  Northern,  R.  Co.,  p. 
59. 

EXCURSION  TRAINS, 

liabilitj'  of  railway  companies  for  loss  of  baggage  on  excursion  trains,     p.  528. 
power  to  limit  such  liability  by  notice,    p.  528.  ^ 

EXEMPLARY  DAMAGES,     {See  Damages.) 

EXPENSES   OF  LITIGATION, 

whether  an  element  of  damages,     p.  571. 

EXPERTS, 

testimony  of,  in  actions  against  carriers,     p.  559. 

EXPRESS  MESSENGER, 

injury  to  person  about  becoming  express  messenger,  "learning  the  run."  p. 
45. 

EXPULSION   OF  PASSENGER, 

circumstances  may  exist  which  will  not  warrant  the  expulsion  of  a  passenger 
after  he  has  been  received,  although  they  would  haVe  warranted  a  refusal  to 
receive  and  carry  him.     Fearson  v.  Duane,  p.  17  ;  note,  p.  30. 


598  INDEX. 


EXPULSION  OF  VASSENQi:^  — Continued. 

carrier  not  bound  to  receive  a  passenger  who  has  already  been  rightfully- 
expelled.     O  'BHen  v.  Boston  etc.  R.  Co.,  p.  22. 
prohibited  by  statute  in  Illinois,  except  at  regular  stopping-places,     p.  319. 

measure  of  damages  where  a  person  is  expelled  between  stations,     p.  319. 
resume  of  circumstances  justifying  the  expulsion  of  passenger  from  carrier's 

vehicles,     p.  375. 
circumstances  justifying  the  expulsion  of  passengers  from  railway  trains,     p. 

377. 
expulsion  of  the  passenger  for  refusal  to  pay  fare.     p.  340. 
discrimination  between  the  price  of  tickets  purchased  at  the  company's  oflSce 
and  rate  of  fare  paid  upon  the  train,     p.  341. 

statute  of  New  York  prohibiting  railway  companies  from  exacting  greater 
fare  than  that  allowed  by  law.     p.  342. 
regulations  restraining  the  transportation  of  passengers  upon  freight-trains. 
p.  343. 

who  are  to  be  deemed  such  passengers,     p.  344. 
classification  of  passengers,     pp.  345-350. 
according  to  sex.     p.  345. 
according  to  color,     p.  346. 
exclusion  of  runners  from  carrier's  vehicles  and  premises,     p.  850. 
expulsion  from  street-railway  cars  while  in  motion,     p.  443. 
passenger  may  not  be  expelled  from  vessel  after  it  has  put  out  to  sea.     p.  465. 
quantum  of  damages  for.     pp.  577-579. 

where  the  expulsion  is  at  a  place  not  a  regular  station,     p.  579. 

EXTEA  BAGGAGE, 

responsibility  of  carrier  for.    p.  522. 

EXTEA  COMPENSATION, 

carrier  may  demand,  for  baggage  of  excessive  value.     New  York  etc.  R.  Co.  v. 
Fraloff,  p.  502. 

EXTEAOEDINAEY   CAEE, 

a  carrier  of  passengers  i^  bound  to  extraordinary  care  for  the  safety  of  his  pas- 
sengers,    pp.  200-205. 
rule  of  extraordinary  care  applies  only  to  injuries  during  the  transit,  and  not 

to  defects  in  the  carrier's  depots  and  grounds,     p.  209. 
it  does  not  apply  to  visible  defects  in  the  carrier's  means  of  transportation. 
p.  212. 

nor  where  the  occasion  was,  in  whole  or  in  part,  some  active  movement 

of  the  passenger,     p.  214. 
nor  where  it  grew  out  of  something  wholly  disconnected  with  the  car- 
rier's business,    p.  214. 


FOEEIGN  ADMINISTEATOE, 

when,  may  sue  carrier  in  domestic  tribunals,     p.  547. 

FORM  OF  ACTION,     (See  Procbdurb.) 

FEAUD, 

of  passenger  in  concealing  in  his  baggage  articles  of  great  value,  discharges 
liability  of  carrier,     p.  503. 


INDEX.  599 


FREE  PASSENGERS, 

passengers  riding  free  with  the  carrier's  consent,  entitled  to  the  same  measure 

of  care  as  pajnng  passengers.     Philadelphia  etc.  R.  Go.  v.  Derby,  p.  31. 
carrier  liable  to,  for  injury  through  culpable  negligence  or  want  of  skill.     Nol- 

ton  V.  Western  R.  Corp.,  p.  37. 
when  entitled  to  the  same  measure  of  care  as  passengers  for  hire,  and  when 

not.     pp.  43-45. 
proprietor  of  a  steamboat  liable  for  the  negligent  injury  of  a  steamboatman 

who,  according  to  a  custom,  was  permitted  to  ride  on  a  boat  without  paying 

fare.     Steamboat  New  World  v.  King,  p.  176. 
validity  of  contracts  limiting  the  liability  of  carriers  to  passengers  travelling 

upon  free  passes,     p.  399. 
liability  of  carrier  for  loss  of  baggage  of.     p.  524. 

FREIGHT-TRAINS, 

degree  of  care  required  in  the  transportation  of  passengers  on  freight-trains. 
p.  234. 

conveniences  on  such  trains,     p.  234. 

means  of  getting  on  and  off  such  trains,     p.  234. 

passengers  upon,  not  presumed  to  have  knowledge  of  regulations  forbidding 
their  presence  there.     Dunn  v.  Grand  Trunk  R.  Co.,  p.  328. 

receiving  passenger  on  such  train  and  collecting  first-class  passenger  fare  of 
him  makes  the  carrier  liable  to  him  the  same  as  though  it  were  a  passenger- 
train.     Ibid. 

regulation  that  passengers  coming  upon,  must  first  procure  tickets,     p.  343. 

who  are  to  be  regarded  as  passengers  upon.     p.  344. 

expulsion  of  passengers  from,  a  ground  of  punitive  damages,     p.  344. 

FROST, 

liability  for  an  injury  caused  by  the  breaking  of  an  axle  on  account  of  frost. 

p.  216. 
railway  company  not  liable  for  the  breaking  of  a  sound  rail  in  consequence  of 

extreme  cold.    p.  220. 

GAMBLERS, 

no  obligation  to  receive  and  carry  a  gambler  who  seeks  to  take  passage  for  the 
purpose  of  plying  his  vocation.     Thurston  v.  Union  Pacific  R.  Co.,  p.  10. 

GETTING  ON  AND  OFF  TRAINS, 

quantum  of  damages  allowed  for  injuries  in.     p.  683. 

{See  also  Contributory  Negligence.) 

GOLD  AND  SILVER, 

liability  of  carrier  for  loss  of  money  transported  as  baggage,     p.  611. 

HIGH  SEAS,     {See  Passengers  by  Water.) 

HUSBAND  AND  WIFE, 

who  may  sue  for  loss  of  wife's  paraphernalia,     p.  537. 

action  by  husband  for  loss  of  wife's  baggage,     p.  647. 

action  by  wife  in  her  own  name.     p.  547. 

IDENTITY  OF  CARRIER  AND  PASSENGER,     {See  Imputed  Nkoligence.) 


600  INDEX. 


IDENTITY  OF  CHILD  WITH  CUSTODIAN,     {See  Imputed  Negligexce.) 
IDENTITY  OP  LUNATIC  WITH  CUSTODIAN,     {See  Imputed  Negligence.) 
IDIOTS,    (See  NoN  Sui  Juris;  Contributory  Negligence.) 

I.MPUTED  NEGLIGENCE, 

application  of  the  doctrine  of,  in  the  carriage  of  passengers,     pp.  273-305. 
negligence  of  the  manufacturer  of  the  carrier's  vehicles  imputed  to  the  carrier. 

Hegeman  v.  Western  R.  Corp.,  p.  160. 
application  of  the  doctrine  of  imputed  negligence  in  the  carriage  of  passengers. 

pp.  273-294. 
that  a  passenger  who  is  injured  by  the  negligence  of  a  third  person  is  precluded 
from  recovering  by  the  contributory  negligence  of  his  own  carrier.     Thoro- 
good  V.  Bryan,  p.  278. 

this  doctrine  denied.     Bennett  v.  New  Jersey  etc.  B.  Co.,  p.  281. 
the  doctrine  of  imputed  negligence  considered ;  proper  scope  of  the  rule.    p. 

284. 
the  case  of  Thorogood  v.  Bryan  doubted  in  subsequent  English  cases,     p.  284. 
and  not  followed  in  some  of  the  cases,    pp.  285,  286. 

but  subsequently  reasserted,     p.  287. 
the  American  decisions  on  the  subject  conflicting,     pp.  288-290. 
effect  of  the  negligence  of  a  stranger  concurring  with  negligence  of  the  carrier, 

to  the  injury  of  a  passenger,     p.  290. 
when  children  and  persons  of  unsound  mind  are  passengers,  the  negligence  of 

their  custodian  is  imputed  to  the  passenger,     pp.  291-294. 
other  cases  illustrative  of  the  rule.     p.  294. 
INJURIES  TO  PASSENGERS, 

liability  for  injuries  to  passenger  while  getting  on  and  off  of  vessel,     p.  472. 

INSPECTION, 

carrier  under  a  continuing  duty  of  inspection  and  repair,     p.  221, 

INSURERS,     {See  also  Negligence.) 

carrier  of  passenger  not  answerable  as  an  insurer.     Readhead  v.  Midland  R. 

Co.,  p.  124;  Stokes  v.  SaltonstaU,  p.  183. 
overruled  cases  holding  carriers  of  passengers  liable  as  insurers,  considered. 

p.  198. 
carriers  of  passengers  not  warrantors  of  their  vehicles  and  roads,  but  liable 
only  for  negligence,     p.  199. 

they  must  use  extraordinary  care.     pp.  200-205. 

except  in  England,  where  they  are  held  only  to  reasonable  care. 
p.  206. 

but  extraordinary  care,  in  the  view  of  some  courts,  means 
no  more  than  reasonable  care  applied  to  the  circumstances 
of  the  case.     p.  207. 
INTENTION, 

whether  the  relation  of  carrier  and  passenger  subsist  is  to  a  great  extern  a 
question  of  intention  on  the  part  of  the  alleged  passenger,     p.  43. 

INTOXICATION, 

railroad  company  not  bound  to  receive  and  carry  drunken  persons.      VintoA  7. 
Middlesex  R.  Co.,  p.  6. 

JOINT  AND   SEVERAL  LIABILITY. 

of  carriers  for  injuries  to  passengers,     p.  545. 


INDEX.  601 


JUEISDICTION, 

courts  of  admiralty  have  jurisdiction  over  torts  of  passengers  upon  the  high 

seas.     pp.  459,  644. 
of  suits  against  carriers,     p.  543. 

of  IState  courts  in  case  of  injury  on  a  railroad  leased  by  a  foreign  corpo- 
ration,    p.  543. 

removal  to  the  Federal  courts  in  such  cases,     p.  543. 
State  jurisdiction  over  injuries  happening  upon  inland  waters,     p.  543. 


JURY,     {See  Law  akd  Fact.) 


LADIES'  CAR, 

right  of  carrier  to  provide  a  separate  car  for  ladies  and  their  attendants,  and  to 
exclude  male  passengers  therefrom.  Bass  v.  Chicago  etc.  JR.  Co.,  p.  311; 
note,  p.  345. 

what  if  there  be  no  sitting  room  in  other  coaches,     p.  345. 

LATENT  DEFECTS, 

carrier  liable  for  defects  In  his  physical  appliances,  though  latent,  if  the  same 

might  have  been  discovered  by  the  most  careful  and  thorough  inspection. 

Ingalls  v.  BiUs,  p.  112. 
stage  proprietor  not  liable  for  the  breaking  of  an  iron  axletree  from  a  defect 

which  cannot  be  discovered  by  an  extraordinary  examination.     Ibid. 
railway  company  not  answerable  for  injury  to  passenger  caused  by  the  breaking 

of  a  wheel  in  consequence  of  a  secret  air-bubble,  which  cannot  be  prevented 

by  any  known   m.eans  of  manufacture  nor  discovered  by  any  known  test. 

Readhead  v.  Midland  R.  Co.,  p.  124. 
liability  of  the  carrier  for  accident  caused  by  latent  defects  in  his  vehicle, 

roadway,  or  other  physical  appliances,     pp.  215-218. 

LATEST   IMPROVEMENTS, 

•whether  a  carrier  of  passengers  is  bound  to  adopt  the  latest  improvements, 
pp.  160,  215. 

LAW  AND  FACT, 

it  is  a  question  for  the  jury  whether  a  carrier  has  been  negligent  in  not  discov- 
ering and  adopting  the  latest  improvements  to  promote  the  safety  of  his 
passengers,     p.  160. 

whether  a  passenger  has  carried  an  excess  of  baggage,  a  question  of  fact.  New 
York  etc.  R.  Co.  v.  Fraloff,  p.  502. 

what  is  baggage  —  a  question  of  law  and  fact.     p.  510. 

what  constitutes  a  delivery  of  baggage  a  question  of  fact.     p.  514. 

when  the  question  of  the  carrier's  negligence  is  a  question  of  law  for  the  court, 
and  when  a  question  of  fact  for  the  jury.     pp.  5ti2,  563. 

province  of  court  and  jury  a.s  to  the  question  of  exemplary  damages,     p.  576. 

LEAPING  FROM  STAGE,     [See  Contributory  Negligence.) 

whether  the  act  of  a  passenger  in  leaping  from  a  stage-coach  while  in  motion 
is  contributory  negligence.     Jones  v.  Buyce,  p.  246. 

LEAPING  FROM   TRAIN, 

whether  contributory  negligence  in  passenger  to  leap  from  train  in  motion, 
pp.  226-229,  252. 


602  INDEX. 


LESSEES, 

iiability  of  railroad  companies  for  injuries  by  their  lessees  in  operating  their 

road.     p.  418. 
of  bar  on  steamboats  are  entitled  to  the  rights  of  passengers,     p.  463. 

LIEN, 

of  carrier  upon  baggage  for  payment  of  fare.     p.  524. 

LIFE-TABLES, 

when  damages  are  computed  from.     p.  565. 

LORD   CAMPBELL'S   ACT, 

pleading  under  statutes  giving  a  right  of  action  for  injuries  resulting  in  death, 
p.  549. 

LUNATICS,     {See  Non  Stn  Juris;  Contributoky  Negligence.) 

MAIL  AGENT, 

not  in  a  strict  sense  a  passenger.     Notion  v.  Western  R.  Corp.,  p.  37.     But  see 

note,  p.  45. 
carrier  not  bound  to  award  him  the  high  degree  of  care  which  springs  out  of 

the  contract  of  carriage.     Ibid. 

but  is  liable  to  him  if  he  is  injured  through  gross  negligence.     Ibid. 

ISIANUTACTURER, 

negligence  of  the  manufacturer  of  the  carrier's  appliances  imputable  to  the 
carrier,    pp.  220-222. 

MANUFACTURE   OF  VEHICLES. 

carrier  not  answerable  for  secret  defects  in  the  manufacture  of  his  vehicles 
not  preventable  by  any  known  means,  nor  discoverable  by  any  known  test. 
Ingalls  v.  Bills,  p.  112;  Readhead  v.  Midland  R.  Co.,  p.  124;  Hegeman  v. 
Western  R.  Corp.,  p.  160. 

but  carrier  not  exonerated  from  the  fact  that  he  purchased  the  vehicle 
from  an  extensive  and  skilful  manufacturer,  if  the  delect  could  have 
been  discovered  by  the  manufacturer  by  the  application  of  any  test 
known  to  persons  skilled  in  such  business.  Hegeman  v.  Western  R. 
Corp.,  p.  160. 

MASTER  AND  SERVANT, 

carrier  not  bound  to  the  same  care  toward  his  servants  as  toward  his  passen- 
gers,   p.  46. 
not  liable  for  an  injury  to  one  servant  from  the  negligence  of  another  servant. 

p.  46. 
circumstances  which  constitute  an  employee  of  the  carrier  a  passenger  for  the 

time  being,    pp.  46-48. 
the  principle  governing  the  liability  of  a  master  for  wrongs  done  by  his  ser- 
vant does  not  apply  to  assaults  upon  passengers  by  the  servants  of  carriers. 
Pendleton  v.  Kinsley,  p.  352. 
whether  carriers  are  bound  by  the  wanton  and  malicious  trespass  of  their  ser- 
vants,    p.  363. 

views  of  Ryan,  C.  J.     p.  363. 
views  of  Shaw,  C.  J.     p.  864. 

conclusion  drawn  from  the  rule  that  the  carrier  is  liable  for  the  good 
conduct  even  of  strangers,     p.  364. 


INDEX.  603 


MASTER  AND  SEUV A^'ST  —  Continued. 
views  of  Walton,  J.     p.  366. 
recent  doctrine  in  Massaclinsetts.     p.  366. 

cases  which  hold  the  carrier  not  liable  unless  the  servant  is  acting  within 
the  scope  of  his  employment,     pp.  366-371. 
authority  of  the  servants  of  carriers  to  make  arrests,     p.  371. 

English  cases  holding  railway  companies  not  liable  for   unauthorized 
arrests  by  their  servants,     pp.  371-373. 
carrier  liable  where  his  servant,  in  executing  his  duties,  uses  excessive  force. 

pp.  373,  374. 
whether  master  may  sue  carrier  for  injuries  to  his  servant     p.  546. 

MASTERS  OF  VESSELS, 

when  obliged  to  receive  and  carry  passengers  beyond  the  seas.     Benett  v. 

Peninsular  etc.  R.  Co.,  p.  448. 
summary  and  absolute  authority  of,  during  voyage,     p.  459. 
duty  of,  towards  passengers  during  the  voyage,  and  liability  of,  for  violation  of 

such  duty.     Ibid. 
is  a  common  carrier,  although  making  a  voyage  to  a  foreign  country,     p.  462. 
has  absolute  control  over  passengers  in  every  thing  relating  to  order  and  safety. 

p.  470. 

MERCHANTS'  SHIPPING  ACT, 

limitation  of  the  carrier's  liability  by  the  English  Merchants'  Shipping  Act. 
p.  474. 

MERE  ACCIDENT, 

carrier  not  answerable  for  mere  accident.     Christie  v.  Griggs,  p.  181. 
(See  Negligence.) 

MITIGATION  OF  DAMAGES, 

circumstances  which  will  be  looked  to  in  mitigation  of  damages,     p.  572. 

MONEY, 

liability  of  carrier  for  loss  of  money  transported  as  baggage,     p.  511. 

MONTE-MEN, 

no  obligation  to  receive  and  carry  gamblers  who  seek  to  ply  their  vocation. 
Thurston  v.  Union  Pacific  R.  Co.,  p.  10. 
MUTINY, 

passenger  endeavoring  to  incite,  may  bo  put  in  irons,     p.  470. 

NEttLIGENCE, 

the  rule  that  there  are  three  degrees  of  negligence,  denied.  Steamboat  New 
Worlil  V.  King,  p.  17o. 

negligence  in  employments  which  require  skill.     Ibid. 

breaking  of  carrier's  vehicle  \z  primai  facie  evidence  of  negligence.  Christie  v. 
Giiggs,  p.  181;  Stokes  v.  Saltonatall,  p.  183;  Curtis  v.  Rochester  etc.  R.  Co., 
p.  188 ;  note,  pp.  209,  566. 

what  will  rebut  this  presumption,     p.  183. 

liability  of  the  carrier  for  injuries  to  his  passenger  tlirough  his  negligence, 
pp.  ill,  242. 

degree  of  care  imposed  upon  a  carrier  in  respect  of  his  vehicle  and  appli- 
ance.    Ingalls  v.  BiiU,  p.  112;   Readhead  v.  Midland  R.  Co.,  p.  124. 

carrier  not  answerable  for  mere  accident.     Christie  v.  Griggs,  p.  181. 


604  INDEX. 


NEGJAQ'E^CE—  Continued. 

not  an  insurer.     Stokes  v.  Saltonstnll,  p.  183;  note,  p.  198. 
not  a  warrantor  of  his  vehicles  and  roads,  but  liable  only  for  negligence,     p.  199. 
degree  of  care  required  of  railway  carriers  of  passengers.     Hegeman  v. 

Western  R.  Corp.,  p.  160. 
not  answerable  for  breaking,  through  secret  defects.     Ingalls  v.  Bills, 

p.  124. 
responsible  for  the  utmost  care  and  skill   in  the  manufacture  of  his 
vehicles.     Hegeman  v.  Western  R.  Corp.,  p.  160. 

liable  for  the  negligence  of  the  manufacturer.     Ibid. 
no  defence  that  the  vehicle  was  purchased  from  an  extensive  manu- 
facturer, of  skill  and  reputation.     Ibid. 
whether  the  carrier  has  been  guilty  of  negligence  in  not  ascertain- 
ing the  utility  of,  and  adopting,  a  recent  improvement  in  vehicles, 
designed  to  advance  the  safety  of  travellers,  is  a  question  for  the 
jury.     Ibid. 
carriers  of  passengers  by  steam  held  to  the  greatest  possible  degree 
of  diligence,  and  any  negligence  is  deemed  gross.     Philadelphia 
etc.  R.  Co.  V.  Derby,  pp.  31,  34 ;  Steamboat  Neio  World  v.  King, 
p.  175. 
carrier  bound  to  use  extraordinary  care.     pp.  200-205. 
general  expression  of  this  doctrine,     p.  200. 
expressions  in  railway  cases,     p.  200. 
expressions  in  stage-coach  cases,     p.  204. 
expressions  in  steamboat  cases,     p.  205. 
modified  expression  of  this  rule  in  American  cases,     p.  206. 
the  English  rule  that  of  reasonable  care.     p.  206. 
American  expressions  of  the  English  rule.     p.  207. 
limitations  upon  the  rule  of  extraordinary  care.     p.  209. 
presumption  of  negligence  from  the  happening  of  the  accident,     p.  209. 
exceptions  to  the  rule  that  the  happening  of  the  accident  is  prlind  facie 

proof  of  negligence,     pp.  212-214. 
duty  of  the  carrier  to  adopt  the  latest  improvements,     p.  215. 
accidents  from  latent  defects  in  vehicles,     p.  215. 
accidents  from  defects  in  the  carrier's  roadway,     p.  218. 
negligence  of  the  manufacturer  imputed  to  the  carrier,     p.  220. 
the  obligation  of  the  carrier,  how  far  affected  by  the  statute,    p.  222. 
duties  of  railway  carriers,     p.  224. 

must  afford  a  reasonable  time  for  passengers  to  get  on  and  off.     p. 

225. 
must  not  injure  passengers  in  getting  on  and  off  by  shunting  trains 
;  upon  them.     p.  226. 

must  announce  the  name  of  the  station  on  arrival,     p.  226. 

must  give  passenger  a  reasonable  opportunity  to  alight,     p.  227. 

must  not  let  the  train  overshoot  or  fall  short  of  the  platform  at 

the  station,     p.  228. 
effect  of  an  invitation  to  alight,  express  or  implied,     p.  229. 
injuries  to  passengers  upon  a  railway  track,     p.  233. 
degree  of  care  required  in  the  transportation  of  passengers  on 
freight-trains,     p.  234. 
duties  of  stage  proprietors,     pp.  235-242. 

the  law  as  laid  down  by  Mr.  .Justice  Story,     p.  235. 


INDEX.  605 


NEGLIGENCE  —  Continued. 

duty  to  furnish  competent  drivers,     p.  238. 
care  and  vigilance  exacted  of  the  driver,     p.  239. 

driver  approaching  dangerous  place  mast  warn  passengers. 

p.  240. 
carrier  answerable  for  negligence  of  driver  until  passenger 
is  set  down  at  his  destination,     p.  2il. 
over-loading  of  carrier's  vehicle,     p.  242. 
gross  negligence  a  relative  term,  depending  upon  the  circumstances  of  each 

case.     Nolton  v.  Weste^fi  R.  Corp.,  p.  37. 
distinction  between  the  degree  of  care  which  a  carrier  owes  his  servants  and 

that  which  he  owes  his  passenger,     p.  46. 
carriers  of  passengers  bound  to  extraordinary  care,  and  liable  for  slight  neglect. 

p.  243. 
carrier  not  bound  to  provide  at  all  events  against  injuries  to  passengers  by 

other  passengers,  but  must  exercise  the  best  efforts  to  that  end.     Pittsburgh 

etc.  R.  Co.  V.  Hinds,  295;  note,  p.  301. 
what  negligence  is  covered  by  a  condition  in  a  free  pass  releasing  liability  for 

personal  injuries,     p.  402. 
the  obligation  to  use  due  care  continues  where  a  carrier  makes  use  of  another 

carrier's  means  of  transportation.     Great   Western  R.   Co.  v.  Blake,  p.  403. 
railway  carriers  bound  to  the  most  exact  care  and   diligence.     McElroy  v. 

Nashua  etc.  R.  Corp.,  p.  409. 
railroad  companies  responsible  for  the  careful  management  of  a  switch  by 

which  another  road  connects  with  theirs,  although  such  switch  is  under  the 

management  of  the  servants  of  the  other  road.     McElroy  v.  Nashua  etc.  R. 

Corp.,  p.  409. 
railroad  company  using  the  road  of  another  companj'  is  chargeable  with  the 

negligence  of  the  latter  company,     p.  412. 
what,  if  the  road  of  the  other  company  is  used  under  statutory  authority,     p. 

415. 
carrier  receiving  passengers  from  coaches  on  another  line  responsible  to  them 

for  negligent  injuries,     p.  417. 
liability  of  ship-owner  for  injuries  to  passengers  while  embarking  or  disem- 
barking,    p.  472. 
duty  to  warn  passengers  of  danger  in  such  cases,     p.  472. 
not  bound  to  provide  means  for  embarking  and  disembarking  except  at  such 

times  as  he  is  ready  to  receive  passengers,     p.  473. 
evidence  of  means  of  embarking  and  disembarking  established  on  other  vessels. 

p.  473. 
expert  testimony  as  to  a  particular  means  established,     p.  473. 
right  of  passenger  to  disembark  where  the  boat  touches  at  a  port  temporarily. 

p.  473. 
presumptions  of  negligence  in  actions  against  carriers,     pp.  181,  183,  188,  209, 

556. 
what  amounts  to  primA  facie  proof  of  negligence  in  such  cases,     p.  556. 
burden  of  proof  in  such  cases,     p.  556. 

NEGROES, 

quantum  of  damages  for  refusing  to  permit  colored  persons  to  ride  in  par- 
ticular cars.     p.  580. 


606  INDEX. 


NEW  JERSEY, 

construotion  of  statute  limiting  liability  of  railway  companies  for  baggage, 
p.  628. 

NEWSBOY, 

boarding  cars  with  acquiescence  of  carrier's  servant,  not  a  passenger,     p.  46. 

NON   SUI  JURIS, 

contributory  negligence  of  passengers  under  disabilities,     pp.  270-272. 
duties  of  carriers  towards  such  passengers,    pp.  270-272. 

NOTICE, 

limiting  carrier's  liability  for  loss  of  baggage,    p.  526. 
what  will  constitute  a  good  notice,     p.  526. 

{See  Contracts  Limiting  Liability.) 

NAVIGABLE   WATERS, 

jurisdiction  in  case  of  injuries  to  passengers  upon.    p.  543. 
{See  Passengers  by  Water.) 

OBLIGATION  TO  CARRY  ACCORDING  TO  ADVERTISEMENT  OR  CON- 
TRACT, pp.  52-71. 

failure  of  railway  company  to  transport  according  to  advertised  time-tables. 
Denton  v.  Great  Northern  R.  Co.,  p.  53. 
.  failure  of  a  railway  company  to  transport  according  to  special  contract.     Haw- 
croft  V.  Great  Northejyi  R.  Co.,  p.  59. 

railway  ticket  for  one  part  of  route  not  good  for  another  part.  Great  Western 
R.  Co.  V.  Pocock,  p.  63. 

what  a  railway  ticket  is.     p.  65. 

failure  to  transport  according  to  contract,     p.  65. 

carrying  passenger  beyond  his  destination,     p.  66. 

duty  of  passenger  to  ascertain  what  train  will  stop  at  his  destination,     p.  66. 

duty  of  railway  carrier  to  provide  passengers  with  seats,     p.  67. 

duty  of  railway  carrier  to  run  trains  on  schedule-time.     p.  67. 

special  contracts  increasing  carrier's  liability,     p.  68. 

contracts  to  transport  over  another  line.     p.  69. 

right  of  passenger  to  stop  oiF  and  resume  journey  on  the  same  ticket,     p.  69. 

OBLIGATION  TO  RECEIVE  AND  CARRY,  pp.  1-30. 

a  general  obligation  to  receive  and  carry.     Bennett  v.  Button,  p.  2 ;  note,  p.  28. 

obligation  to  carry  passenger  who  proposes  to  take  passage  by  a  rival  line. 
Ibid. 

not  bound  to  carry  drunken  persons.     Vinton  v.  Middlesex  R.  Co.,  p.  6. 

nor  gamblers  whose  purpose  it  is  to  ply  their  vocation.  Thurston  v.  Union 
Pacific  R.  Co.,  p.  10. 

nor  drummers  for  a  rival  line.     Jeneks  v.  Coleman,  p.  11. 

refusal  of  a  ship-master  to  bring  back  a  passenger  exiled  by  a  vigilance  com- 
mittee.    Pearson  v.  Duane,  p.  17. 

quantum  of  damages  in  such  a  case.     Ibid. 

not  bound  to  carry  passenger  who  has  been  rightfully  ejected  from  carrier's 
vehicle.     O  'Brien  v.  Boston  etc.  R.  Co.,  p.  22. 

carrier  may  make  regulation  for  ejection  of  persona  who  refuse  to  pay  fare. 
Ibid, 


INDEX.  607 


OBLIGATION  TO  KECEIVE  AND  CAB.RY  —  Continued. 

want  of  room  will  excuse  carrier  from  receiving  passenger,     p.  29. 

payment  or  tender  of  fare  a  condition  precedent  to  the  right  to  be  carried. 

p.  29. 
under  certain  circumstances,  carrier  may  not  eject  passenger  who  has  been 

received,  although  he  might  have  refused  to  carry  him  in  the  first  instance. 

p.  30. 
in  case  of  vessels  making  foreign  voyages.     Benett  v.  Peninsular  etc.  Co.,  p. 

448 ;  note,  p.  464. 

OPINIONS  OF  WITNESSES, 

opinions  of  expert  witnesses  in  actions  against  carriers,    p.  559. 
opinions  of  non-expert  witnesses,     p.  560. 

OVERLOADING, 

liability  of  stage  proprietor  for  overloading,     pp.  241,  242. 

OVERRULED  CASES, 

overruled  cases  holding  carriers  of  passengers  liable  as  insurers,  considered* 
p.  198. 

PAIN  AND  SUFFERING, 

damages  recoverable  for  future  pain  and  suffering.     Curtis  v.  Rochester  etc.  R. 
Co.,  p.  189. 

PARENT  AND  CHILD, 

father  may  sue  for  loss  of  child's  baggage,     p.  5S7. 

whether  parent  may  sue  carrier  for  injuries  to  child  on  account  of  loss  of  Mr- 
vice,     p.  546. 

PARTICULARITY  OF  STATEMENT,     (See  Pleading.) 

PARTIES   TO   ACTIONS, 

in  case  of  injuries  to  passengers  from  collision  of  vessels,     p.  475. 
in  suits  against  carriers,     p.  546. 

master  or  parent,  for  loss  of  service  of  servant  or  child,    p.  546. 

foreign  administrator,     p.  547. 

husband  for  wife.     p.  547. 

wife  in  her  own  name.    p.  547. 

assignee  of  cause  of  action,     p.  547. 

PARTNERSHIP, 

in  case  of  the  partnership  of  carriers,  the  partners  are  jointly  and  severally 

liable  for  torts  committed  upon  passengers,     p.  436. 
an   arrangement  between   connecting  lines  to   carry  passengers  on  through 
tickets  does  not  constitute  a  partnership  within  this  rule.     p.  436. 

PASSAGE-MONEY, 

when  may  be  recovered  back.    p.  466. 

PASSENGER,    {See  Free  Passenger.) 

contributory  negligence  of.     pp.  243-272. 

circumstances  which  create  the  relation  of  carrier  and  passenger,    p.  42. 

hailing  an  omnibus,     p.  42. 

checking  baggage,    p.  42. 


608  INDEX. 


PASSENGER  —  Continued. 

not  necessary  that  the  contract  should  be  consummated  by  payment 

of  fare  on  entering  the  vehicle,     pp.  43,  463. 
persons  going  into  waiting-room  to  become  passengers  are  deemed  such. 

p.  43. 
how  far  a  question  of  intention,     p.  43. 
trespassers  on  carrier's  vehicle  not  entitled  to  the  same  measure  of  care  as 

passengers,     p.  43. 
not  necessary  that  money  should  be  paid  to  constitute  a  passenger  for  hire. 
p.  45. 

illustrations :  drovers  attending  cattle ;  persons  carrying  on  business  on 

carrier's  vehicle,     p.  45. 
express-messengers  on  railwaj^  trains,     p.  45. 
person  about  to  become  express  messenger,  on  board  for  the  purpose 

of  "learning  the  run."     pp.  45,  46. 
lessee  of  the  bar  of  a  steamboat,     pp.  46,  463. 
boy  on  railway  train,     p.  46. 
newsboy  coming  on  train  to  sell  papers,     p.  46. 
temporary  absence  of  passenger  from  the  conveyance  does  not  sever  the  relation 

of  carrier  and  passenger,     p.  50. 
evidence  as  to  who  is  a  passenger,     p.  51. 

presumption  that  every  one  on  the  conveyance  is  a  passenger,    p.  51. 
admissibility  of  employee's  pass.     p.  51. 
evidence  to  show  that  a  train  is  a  passenger-train,     p.  51. 
person  employed  on  a  private  car.     p.  52. 
slaves  carried  for  hire.     p.  52. 

who  is  to  be  deemed  a  passenger  on  board  a  ship  on  the  high  seas.     p.  463. 
status  of  soldiers  being  transported  on  shipboard,     p.  463. 
person  who  has  entered  to  talce  passage,  but  who  has  not  paid  fare.     pp.  43,  463. 
duty  of,  in  respect  to  the  care  of  his  baggage  during  the  transit,     p.  530. 

PASSENGERS  BY  WATER, 

the  duties  and  obligations  of  carriers  of  passengers  by  water,     p.  448-487. 

duty  of  carriers  of  passengers  making  voyages  beyond  seas,  to  receive  and 
carry.     Benett  v.  Peninsular  etc.  Co.,  p.  448. 

jurisdiction  of  courts  of  admiralty  over  torts  of  passengers  upon  the  high  seas. 
Chamberlain  v.  Chandler',  p.  459 ;  note,  p.  468. 

the  summary  and  absolute  authority  of  the  masters  of  vessels.  Ibid.;  note,  p. 
470. 

what  conduct  of  masters  of  vessels  towards  passengers  may  be  actionable.     Ibid. 

both  the  owner  and  master  of  a  ship  are  common  carriers,  even  in  respect  of 
passengers  carried  to  a  foreign  country,     p.  462. 

■who  is  a  passenger  on  board  of  a  ship  navigating  the  high  seas.     p.  463. 

status  of  soldiers  who  are  being  transported  on  shipboard,     p.  463. 

status  of  the  lessee  of  a  bar  on  a  steamboat,     p.  463. 

when  the  master  of  a  vessel  may  refuse  to  receive  passengers,     p.  464. 

when  a  passenger  may  be  expelled  from  a  vessel,     p.  465. 

when  passage-money  may  be  recovered  back.     p.  466. 

construction  of  contracts  for  carriage  of  passengers  by  water,     p.  467. 

duty  of  carriers  by  water  as  to  the  accommodation  and  treatment  of  passen- 
gers,    p.  468. 

authority  of  the  master  of  a  vessel  over  passengers,     pp.  459,  470. 


INDEX.  609 


PASSENGERS  BY  W XTER  —  Continued. 
right  of  passengers  to  salvage,  p.  470. 
baggage  of  passengers  by  water,     p.  471. 

contract  against  liability  for  loss  of.     p.  471. 

passenger  must  demand  baggage  within  a  reasonable  time  after  arriving 
^  at  port.     p.  471. 

at  sea,  may  require  baggage  to  be  deposited  in  suitable  place,    p.  472. 
injuries  to  passengers  getting  on  and  off  vessel,     p.  472. 
duty  of  carrier  to  warn  passengers  of  danger  in  disembarking,     p.  472. 

carrier  not  required  to  provide  means  for  embarking,  except  when  he  is 
receiving  passengers,     p.  473. 
V        evidence  of  means  for  embarking  and  disembarking  used  on  other  vessels,     p. 
473. 

opinions  of  experts  as  to  the  feasibility  of  such  means,     p.  473. 
rights  of  passengers  inter  se  to  berths  on  stf^amboats.     p.  474. 
duty  of  carrier  as  affected  by  quarantine,     p.  474. 

limitation  of  carrier's  liability  by  the  English  Merchants'  Shipping  Act.     p.  474. 
parties  to  action  in  case  of  injury  to  passenger  by  collision  of  vessel,     p.  475. 
statutes  of  the  United  States  affecting  carriers  of  passengers  by  water,     pp. 
475-487. 

historical  sketch  of  these  statutes,     p.  475. 

condensed  statement  of  the  provisions  of  the  act  of  February  28,  1871. 

p.  476. 
condensed  statement  of  the  provisions  of  the  act  of  March  3,  1855.     p. 

478. 
review  of  cases  construing  the  foregoing  acts.     p.  479. 
act  of  March  2,  1819.     p.  479. 
act  of  March  3,  1855.     p.  479. 
acts  of  July  7,  1838,  and  August  30,  1852.     p.  480. 
act  of  July  4,  1864.     p.  481. 
actof  July  25,  1866.     p.  482. 
act  of  February  28,  1871.     p.  482. 
limitation  of  carrier's  liability  by  the  act  of  March  3,  1851.     p.  483. 
scope  of  this  act.     p.  484. 
its  application   to  passenger-carriers  in  respect  of  a  piissenger's 

baggage,     p.  485. 
jurisdiction  in  certain  cases  under  this  act.     p.  486. 

PASSENGER-TRAIN, 

evidence  to  show  that  a  particular  train  is  a  passenger- train,     p.  51. 

PAYMENT  OF  FARE,     {See  Tickets.) 

right  of  railway  company  to  adopt  regulations  requiring  conductors  to  expel 

persons  who  refuse  to  pay  their  fare,  and  not  to  receive  them  on  board  after 

they  have  been  so  expelled.     O'Brien  v.  Boston  etc.  R.  Co.,  p.  22. 
payment  of  or  readiness  to  pay  fare  a  condition  precedent  to  the  right  to  be 

carried,     p.  29. 
right  of  carrier  to  require  passengers  to  purchase  tickets  before  entering  train, 

and  to  charge  the  highest  rate  of  fare  where  this  is  not  done.     Chicago  etc. 

R.  Co.  V.  Parks,  p.  319. 
refusal  to  pay  fare  justifies  expulsion  of  passenger,     p.  340. 
whether  the  carrier  can  exact  a  greater  price  where  a  ticket  is  not  purchased 

at  the  station,     p.  341. 

89 


610  INDEX. 


PEDDLERS, 

carrior  not  obliged  to  furnish  facilities  on  his  vehicles  for  traflBcking  purpose-, 
p.  351. 

PERSONS  ATTENDING  PASSENGERS, 

conflict  of  authority  as  to  the  dutj'  which  the  carrier  owes  to  persons  attending 
passengers  arriving  and  departing,     pp.  49,  50. 

PLATFORM, 

whether  riding  on  a  platform  of  a  railway  car  is  contributory  negligence,     p. 

259. 
injuries  to  passengers  while  riding  upon  the  front  platform  of  street-railway 

cars.      Wilton  v.  Middlesex  R.   Co.,  p.  438;  Burns  v.  Beiiefontaitie  R.   Co., 

p.  441 ;  note,  pp.  444-447. 

PLEADING, 

it  is  not  sufScient  to  allege  in  a  defensive  plending  that  the  vehicle  which  broke 
was  purchased  from  a  competent  manufacturer;  the  pleader  must  state  that 
the  manufacturer  himself  was  not  guilty  of  negligence  in  making  it.     p. 
221. 
counts  in  the  declaration  in  actions  against  carriers,     p.  547. 
particularity  of  statement  in  the  declaration  or  complaint,     p.  547. 
in  actions  ex  delicto,     p.  547. 
in  actions  ex  contractu,     p.  649. 
allegations  under  statute  giving  a  right  of  action  where  the  damages  resulted 

in  death,    p.  549. 
allegation  of  the  carrier's  duty.     p.  550. 
allegation  of  damages,     p.  550. 

special  damages  must  be  alleged,     p.  550. 
•whether  the  plaintiff  must  deny  contributor}-  negligence,     pp.  551-553.  ■ 
particularity  of  statement  in  the  defensive  pleadings,     p.  654. 
variance  between  the  allegations  and  proof,     p.  554. 
illustrations,     p.  555. 

POLICE  DUTIES  OF  THT^  CARRIER, 

duty  to  protect  passengers  by  proper  police  regulations.  Pittshurgh  etc.  R.  Co. 
V.  Hinds,  pp.  295-301. 

duty  of  passengers  to  subordinate  themselves  to  such  regulations.  Ibid. ;  Bass 
v.  Chicago  etc.  R.  Co..  p.  311. 

carrier  not  bound  to  provide  against  injuries  to  passenger  at  all  events,  but 
must  exhaust  every  measure  to  furtlier  the  safety  of  passengers,     p.  295. 

caution  required  of  carrier  in  maintaining  order  on  his  vehicle,     p.  301. 

duty  in  case  of  intoxicated,  disorderly,  and  dangerous  passengers,     p.  302. 

duty  in  case  passengers  use  profane  language  and  are  guilty  of  other  impro- 
prieties,    p.  303. 

liability  of  carriers  for  injuries  to  passengers  in  consequence  of  failure  to 
execute  proper  police  regulations,     pp.  303-306. 

PREMIUM, 

for  the  carriage  of  baggage  may  be  in  proportion  to  its  value,  p.  489 ;  New 
Fork  etc.  R.  Co.  v.  Fraloff,  p.  503. 

PRESUMPTION,     {See  Evidence.) 

of  negligence  in  actions  against  carriers,     pp.  181,  183,  188,  209.  556. 


INDEX.  611 


PRESUMPTIVE  DAMAGES, 
when  recoverable,    p.  564. 

PRIMA  FACIE  EVIDENCE,     {See  Negligence.) 

of  negligence  in  actions  against  carriers,     pp.  181, 183, 188,  209,  556. 

PRIVATE  CAR, 

persons  carried  upon,  not  strictly  passengers,     p.  52. 

PRIVATE  INTERNATIONAL  LAW,     {See  Jurisdiction.) 

PROCEDURE, 

parties  to  actions  for  loss  of  baggage,     p.  537.  ' 

father  may  sue  for  child's  baggage,     p.  537. 
whether  husband  sues  for  wife's  baggage,     p.  537. 
assignee  of  claim  for  lost  baggage  may  sue.    p.  538. 
form  of  action  at  common  law  for  loss  of  baggage,    p.  588. 
foreign  attachment  does  not  lie  in  Pennsj-lvania  in  actions  for  loss  of  baggage. 

p.  538. 
actions  against  carriers  ex  contractu  or  ex  delicto.     McCall  v.  Forsyth,  p.  541 ; 

note,  p.  544. 
form  of  the  action  against  carriers  for  injuries  to  passenger,  trespass  or  case. 

p.  545. 
abatement  and  revival  of  actions,     p.  546. 
who  may  sue.     p.  546. 

master  or  parent,  for  loss  of  service  of  servant  or  child,     p.  546. 
foreign  administrator,     p.  547. 
husband  for  wife.     p.  547. 
wife  in  her  own  name.     p.  547. 
assignee  of  the  cause  of  action,     p.  5'*7. 

PROVINCE  OP  COURT  AND  JURY,  (-See  Law  and  Fact.) 

PROXIMATE  AND  REMOTE  CAUSE, 

remote  negligence  of  passenger  no  bar  to  a  recovery  for  the  carrier's  negli- 
gence, if  the  immediate  cause  of  the  accident.  Morrissey  v.  Wiggins  Ferry 
Co.,  p.  248. 

QUARANTINE, 

obligations  of  carriers,  how  affected  by  quarantine  regulations,    p.  474. 

RAILROAD  ACCIDENTS,     {See  Negligence.) 

quantum  of  damages  allowed  for  injuries  in.    p.  582. 

RAILWAY  CARRIERS, 

bound  to  use  the  greatest  care,  and  liable  for  the  slightest  negligence,     pp.  200, 

204. 
duty  of  railway  carriers  of  passengers  in  general,     p.  224. 
duty  to  establish  reasonable  rules  and  regulations,     p.  224. 
duty  not  to  overload  their  carriages,     p.  224. 

duty  to  afford  passengers  reasonable  time  to  get  on  and  off.     pp.  226-227. 
duty  to  announce  the  names  of  stations,     p.  226. 

duty  to  stop  train  at  stations  so  as  not  to  overshoot  the  platform,     p.  228. 
invitation  to  passenger  to  alight,  express  or  implied,     p.  229. 


612  INDEX. 


RAILWAY  CAURIERS— Continued. 

what  will  constitute  an  implied  invitation  to  alight,  a  source  of  controversy. 
p.  230. 

calling  out  the  name  of  the  station,     p.  281. 
guard  opening  the  door.     p.  231. 
liability  for  injuring  passengers,  by  the  running  of  trains,  who  are  obliged  to 

pass  over  several  tracks  in  leaving  the  cars.     p.  233. 
degree  of  care  required  in  the  transportation  of  passengers  on  freight-trains. 
p.  234. 

conveniences  on  such  trains,     p.  234. 

means  of  getting  on  and  off  such  trains,    p.  234. 

RAILWAY  COMPANY, 

when  not  deemed  a  common  carrier  of  passengers,     p.  29. 

circumstances  justifying  the  expulsion  of  passengers  from  railway  trains,     p. 
377. 

RAILWAY  CROSSING, 

right  of  a  pedestrian  to  cross  from  the  platform  of  a  street  car  when  it  is 
obstructing  the  crossing,     p.  447. 

RAILWAY   STATIONS, 

injuries  to  passengers  from  defects  or  obstructions  in  and  about  railway  stations. 
pp.  72-110. 

passenger  opening  door  of  the  wrong  room,  and  injured  by  falling  down 

a  stairway.     Toomey  v.  London  etc.  R.  Co.,  p.  72. 
passenger  injured  by  falling  over  weighing-machine  left  on  the  platform. 

Comtnaii  v.  Eastern  Counties  R.  Co.,  p.  76. 
passenger  killed  through  the  faulty  construction  of  a  bridge  at  the  rail- 
way station.     Longmoj-e  v.  Great  Western  R.  Co.,  p.  81. 
passenger  injured  by  falling  over  some  hampers  which  obstructed  the 
path  of  egress  from  the  train  on  a  dark  night.     Nicholson  v.  Lan- 
cashire etc.  R.  Co.,  p.  85. 
passenger  injured  by  falling  down  a  slippery  staircase  at  a  railway  station. 

Grafter  v.  Metropolitan  R.  Co.,  p.  88. 

duty  of  a  railway  company  to  provide  reasonable  accommodations  for 

its  passengers  at  its  stations.     McDonald  v.  Chicago  etc.  R.  Co.,  p.  93. 

passenger  injured  by  defective  platform,  in  entering  the  cars  at  an  unusual 

place  and  in  advance  of  time.     Ibid. 

duty  of  companies  to  keep  all  portions  of  their  platform  and  approaches  to 

their  cars  in  a  safe  condition.     Ibid. 
passenger  injured  by  railway  station-house  being  blown  down  by  a  storm. 
Pittsburgh  etc.  R.  Co.  v.  Brigham,  p.  101. 

the  extent  of  the  duty  of  the  carrier  to  maintain  safe  station-houses, 

platforms,  and  grounds,  discussed,     p.  104. 
passenger  bitten  by  a  stray  dog  at  a  railway  station  no  evidence  of  neg- 
ligence,    p.  105. 
to   whom   the  railwaj'  company  owes  the  duty  of  keeping  its  depot, 
houses,  and  grounds  in  a  safe  condition,     pp.  105,  106. 

to  persons  having  duties  to  perform  in  connection  with  the  arrival 
and  departure  of  passengers,     p.  105. 

but  not  to  mere  trespassers  and  licensees,     pp.  105,  106. 
illustrations  of  negligence  in  this  particular,     p.  107. 


IJ^DEX.  613 


RAILWAY  STATIONS  —  Continued. 

failure  to  keep  its  stations  lighted  at  night,     pp.  108,  109. 
suffering  snow  and  ice  to  accumulate  on  platforms,     p.  110. 
injuring  passengers  at  stations  by  misplacing  switch  and  shunting 
a  train  upon  the  wrong  track,     p.  110. 

REASONABLE  CARE, 

English  doctrine  of  reasonable  care  applicable  to  carriers  of  passengers,     p.  206. 

American  expressions  of  the  same  doctrine,     p.  207. 
illustrations  of  the  English  doctrine  of  reasonable  care  as  applied  to  railway 
carriers,     pp.  217,  218. 

REGULATIONS  OF  THE  CARRIER.    {See  also  Police  Duties  of  the  Car- 
rier.) 

right  of  the  carrier  to  make  reasonable  rules  and  regulations  for  the  accommo- 
dation of  passengers.     Day  v.  Owen,  p.  306. 

reasonableness  of  such  regulations  a  mixed  question  of  law  and  fact. 
Id.,  307;  Bans  v.  Chicago  etc.  R.  Co.,  p.  311. 
•  how  such  regulations  are  pleaded.     Ibid. 

exclusion  of  colored  passengers  from  the  cabin  of  a  steamboat.     Day  v.  Owen, 

p.  306. 
reasonableness  of  a  regulation  reserving  a  separate  car  for  ladies  and  their 

attendants.     Bass  v.  Chicago  etc.  R.  Co.,  p.  811. 
such  a  regulation  cannot  be  enforced  if  there  is  not  sufficient  room  for  passen- 
gers in  other  cars.     Ibid. 
discrimination  between  price  of  tickets  and  fares  paid  on  train.     Chicago  etc. 
R.  Co.  V.  Parks,  p.  319. 

expulsion  of  passengers  for  refusal  to  comply  with  such  a  regulation,     p. 
319. 

measure  of  damages  for  such  expulsion,    p.  319. 
passengers  upon  freight-trains  not  presumed  to  have  knowledge  of  regulations 

forbidding  their  presence  there.     Dunn  v.  Grand  Trunk  R.  Co.,  p.  328. 
power  of  the  carrier  to  establish  regulations  considered,     p.  335. 
regulations  as  to  the  exhibition  and  delivery  of  tickets,     p.  336. 
'passenger  riding  without  ticket,  or  without  a  proper  ticket,     p.  337. 
regulations  as  to  the  carriage  of  passenger's  baggage.     HoUister  v.  Nowlen,  p. 
489 ;  New  York  etc.  R.  Co.  v.  Fraloff,  pp.  502,  529. 
notice  to  passengers  of  such  regulations,     p.  529. 
such  regulations  must  be  reasonable,     p.  530. 

RELATION   OF   CARRIER  AND   PASSENGER, 

when  the  relation  of  carrier  and  passenger  subsists,     pp.  31-52. 
passengers  riding  free.     Philadelphia  etc.  R.  Co.  v.  Derby,  pp.  31,  43 ;  Steam- 
boat New  World'  v.  King,  p.  176. 
■what  constitutes  gratuitous  carriage,     p.  45. 

mail-agents  upon  railway  trains.     Nolton  v.  Western  R.  Corp.,  p.  37. 
the  relation  of  carrier  and  passenger  arises,  how.     p.  42. 
consummation  of  the  contract  not  necessary,     p.  43. 
persons  carrying  on  business  on  a  carrier's  vehicles  or  vessels,     p.  45. 
employees  of  the  carrier,     p.  46. 

persons  attending  passengers  arriving  or  departing,     p.  49. 
persons  employed  on  a  private  car.     p.  52. 
elaves  carried  for  hire.     p.  52. 


614  INDEX. 


RELATION  OF  CARRIER  AND  VASSENGEli,—  Continued. 
passengers  temporarily  absent  from  the  conveyance,  p.  50. 
evidence  as  to  who  is  a  passenger,     p.  51. 

burden  of  proof  in  such  cases,     p.  51.  ^ 

admissibility  of  employee's  pass.     p.  51. 
evidence  to  show  that  a  train  is  a  passenger-train,     p.  51. 
ceases  when,  in  case  of  carriage  on  street  railways,    p.  446. 

RELEASE,     {See  Contracts  Limiting  Liability.) 

REMEDIES,   PROCEDURE,  AND   DAMAGES, 

considered,     pp.  540-585. 

RES  G-EST^,     {See  Evidbnce. 

RESPONDEAT  SUPERIOR,     {See  Master  and  Servant.) 

carrier  responsible  for  negligence  of  servant,  although  acting  against  his 
express  orders.     Philadelphia  etc.  R.  Co.  v.  De)-by,  p.  31. 

carrier  not  liable  to  one  servant  for  ah  injury  through  the  negligence  of  a  fel- 
low-servant,    p.  46. 

liability  of  carrier  for  the  acts  of  his  servants  in  respect  of  passenger's  bag- 
gage,    p.  519. 

RETURN  OP  PASSAGE-MONEY, 

return  of  the  passage-money  after  the  passenger  has  been  injured  does  not 
affect  the  previous  relation  of  carrier  and  passenger,     p.  44. 

RIVAL  LINES, 

obligation  to  carry  a  passenger  who  proposes  to  take  passage  with  a  rival  con- 
necting line.     Bennett  v.  Dutton,  p.  2. 
no  obligation  to  carry  a  drummer  for  a  rival  line.     Jencks  v.  Coleman,  p.  11. 

ROADWAY, 

railway  carriers  liable  for  defects  in  their  roadway,     pp.  218-220. 

duty  to  widen  embankments,     p.  219. 

to  maintain  a  safe  gate  or  cross-bar  at  crossings,     p.  219. 

to  maintain  a  road-bed  of  sufficient  strength  to  resist  unusual  storms, 
p.  219. 

but  not  storms  of  unprecedented  violence,     p.  219. 

not  liable  for  the  breaking  of  a  sound  rail  in  consequence  Oj.  extraordi- 
nary cold.     p.  220. 

RULES,    {See  Regulations  of  the  Carrier.) 

power  of  a  railway  company  to  make  rules  and  regulations  respecting  the  time, 
mode,  and  place  of  entering  its  cars.     McDonald  v.  Chicago  etc.  R.  Co.,  p.  93. 

RUNNERS  AND  DRUMMERS, 

right  of  carrier  to  exclude,  from  his  vehicles  and  premises,     p.  350. 

SALVAGE, 

right  of  passengers  to  salvage,     p.  470. 

SAMPLES, 

liability  of  carrier  for  loss  of  samples  .transported  as  baggage,     p.  511. 

SCHEDULE-TIME,     {See  Time-Table.) 

duty  to  give  publicity  to  changes  in  time-tables,     p.  68. 

SECRET  DEFECTS,     {See  Latent  Defects.) 


INDEX.  615 


SLAVES, 

carried  for  hire,  deemed  passengers,     p.  52. 

SLEEPING-CAR  COM'paNIES, 

liability  of,  for  loss  of  baggage  and  valuables,     p.  530. 
a  sleeping-car  not  an  inn.     p.  531. 
owners  of,  must  keep  a  watch  and  exercise  care  while  guests  are  asleep. 

p.  531. 
theft  of  passengers'  baggage  while  those  in  charge  of  the  car  are  absent 

or  asleep,     p.  581. 
liability  of  the  proprietors  of  such  cars  extends  to  what  baggage,     p.  532. 

SPECIAL  DAMAGES,     {See  Damages.) 

SPECULATIVE   DAMAGES,     {See  Damages.) 

STAGE-COACH, 

passenger  injured  by  leaping  from  stage-coach.     Ingalls  v.  Bills,  p.  112 ;  Stokes 

V.  Saltonstall,  p.  183. 
contributor}^  negligence  of  passenger  in  leaping  from  stagti-cuuch.     Jones  v. 

Boyce.     p.  246. 
stage-coach  law.     pp.  235-242. 
quantum  of  damages  allowed  for  injuries  in  stage  accidents,     p.  583. 

STAGE  PPvOPRIETOKS, 

bound  to  use  the  utmost  care  and  vigilance,     pp.  204,  205. 

duties  and  obligations  of,  in  the  carriage  of  passengers,     pp.  235-242. 

the   law  on  this  subject  as  laid  down  by  Mr.  Justice  Story,     pp.  235- 

238. 
duty  to  furnish  competent  drivers,     p.  238. 

furnishing  a  known  drunkard  for  a  driver,  is  liable  for  exemplary  dam- 
ages,    p.  239. 
responsible  for  negligence  of  driver  employed  to  take  the  place  of  one 

who  is  sick.     p.  239. 
care  and  faithfulness  exacted  of  the  driver,     p.  239. 
•where  two  courses  are  open,  the  driver  is  bound  to  adopt  the  one  which 

is  the  least  perilous,     p.  240. 
driver  bound  to  the  strictest  care  and  the  most  unremitting  vigilance. 

p.  240. 
must  warn  passengers  when  approaching  place  of  danger,     p.  240. 
obligation  in  this  regard  continues  from  the  time  the  passenger  is  taken 

on  board  till  he  is  set  down  at  the  end  of  his  journey,     p.  241. 
is  not  excused  in  negligently  injuring  passengers  who  persist  in  riding 

on  the  outside,     p.  241. 
must  not  overload  his  vehicle,     p.  242. 

STATIONS  AND  APPROACHES, 

obligation  of  the  carrier  to  furnish  safe  and  convenient  stations  and  approaches. 

pp.  72-110. 
injuries  to  passengers  from  defects  in  carrier's  railway  stations  and  grounds. 
Toomey  v.  London  etc.  li.  Co.,  p.  72 ;  (Jomtnan  v.  Eastern  Counties  R.  Co., 
p.  76;  Longmore  v.  Great  Western  R.  Co.,  p.  81;  Nicholson  v.  Lancashire 
etc.  R.  Co.,  p.  85;  Grafter  v.  Metropolitan  R.  Co.,  p.  88;  McDonald  v. 
Chicago  etc.  R.  Co.,  p.  93;  Pittsburgh  etc.  R.  Co.  v.  Brigham,  p.  101. 

passenger  opening  wrong  door  and  falling  down  stairs.     Toomey  v.  Lon- 
don etc.  R.  Co.,  p.  72. 


616  INDEX. 


STATIONS  AND  AFFRO ACRES  —  Continued. 

passenger  falling  over  weighing-machine  on  platform.     Comman  v.  East- 
ern Counties  R.  Co.,  p.  76. 
death  of  passenger  from  defective  bridge  at  railway  station.     Longmore 

V.  Oreat  Western  R.  Co.,  p.  81 
egress  from  railway  train  obstructed,  injuring  passenger.     Nicholson  v. 

Lancashire  etc.  R.  Co.,  p.  85. 
passenger  injured  upon  slippery  staircase  at  railway  station.     Grafter 
V.  Metropolitan  R.  Co.,  p.  88. 
railway  company  bound  to  provide  reasonable  accommodations  for  passengers 

at  railway  stations.     McDonald  v.  Chicago  etc.  R.  Co.,  p.  93. 
may  make  rules  as  to  passengers  entering  cars;  effect  of  such  rules.     Ibid. 
liability  of  such  company  for  injury  to  a  passenger  through  defective  plat- 
form.    Ibid. 
injury  to  a  passenger  in  consequence  of  a  railway  station-house  being  blown 

down  by  a  storm.     Pittsburgh  etc.  R.  Co.  v.  Brigham,  p.  101. 
extent  of  the  duty  of  railway  companies  to  provide  safe  stations  and  approaches. 

p.  104. 
case  of  a  passenger  bitten  by  a  stray  dog  at  a  railway  station,     p.  105. 
to  whom  the  carrier  owes  this  duty.     p.  105. 

does  not  owe  it  to  mere  licensees,     p.  106. 

otherwise  to  persons  coming  to  assist  the  departure  of  passengers. 
p.  106. 
liability  where  two  railway  companies  own  two  adjoining  stations,  which 

the  passengers  use  indifferently,     p.  106. 
other  illustrations  of  negligence  in  this  particular,     p.  107. 
duty  to  keep  stations  lighted,     p.  108. 
injury  to  passenger  from  falling  into  an  excavation  on  a  dark  night. 

pp.  108,  109. 
passenger  injured  by  reason  of  snow  and  ice  on  platform,     p.  110. 
brakeman  throwing  burning  stick  of  wood  from  the  train  and  injuring 

passenger,     p.  110. 
passenger  running  to  escape  unexpected  train,  and  injured,     p.  110. 

STATUTES, 

act  of  Congress  relating  to  vessels  propelled  by  steam ;  burden  of  proof  under. 

p.  175. 
statutes  affecting  the  obligation  of  carriers  considered,     pp.  222-224. 
compliance  with  the  requirements  of  a  statute  designed  to  pi-omote  the  safety 

of  passengers  will  not  alone  exonerate  the  carrier,     p.  222. 
Federal  statutes  for  the  security  of  the  lives  of  passengers  on  board  of  vessels 

propelled  in  whole  or  in  part  by  steam,     pp.  222-224. 
failure  to  comply  with  the  requirements  of  a  statute  is  negligence  per  se.     p. 

223. 
limitation  of  the  carrier's  liability  by  the  English  Merchants'  Shipping  Act. 

p  474. 
statutes  of  the  United  States  affecting  carriers  of  passengers  by  water,     p.  475. 
historical  sketch  of  such  statutes,     p.  475. 
condensed  statement  of  the  provisions  of  the  act  of  February  28,  1871. 

p.  476. 
condensed  statement  of  the  provisions  of  the  act  of  March  3, 1855.    p.  478. 
review  of  the  cases  considering  the  foregoing  acts.     pp.  479-482. 
act  of  March  2,  1819.     p.  479. 


INDEX.  617 


STATUTES  —  Continued. 

act  of  March  3,  1855.     p.  479. 
act  of  July  7,  1838.     p.  480. 
act  of  August  30,  1852.     p.  480. ' 
act  of  July  4,  1864.     p.  481. 
act  of  July  25,  1866.     p.  482. 
act  of  February  28,  1871.     p.  482. 
limitation  of  carrier's  liability  by  the  act  of  March  3,  1851.     pp.  483-487. 
scope  of  this  act.     p.  484. 

its  application  to  passenger-carriers  in  respect  to  passengers'  bag- 
gage,    p.  485. 
jurisdiction  under  it  in  certain  cases,     p.  486.  * 

English  Eailway  and  Canal  Traffic  Act.     526. 
construction  of  New  Jersey  statutes  limiting  liability  of  railway  company  for 

baggage,     p.  528. 
notices  limiting  liability  for  baggage  under  English  Eailway  and  Canal  Traffic 

Act.     p.  528. 
act  of  Congress  limiting  liability  of  ship-owners  for  passengers'  baggage,     p. 

530. 
Iowa  statute  imposing  penalty  of  three  dollars  a  day  where  traveller  is  detained, 
p.  537. 

STEAM,     [See  Statutes.) 

degree  of  care  exacted  of  carriers  who  carry  passengers  by  steam.     Philadelphia 

etc.  R.  Co.  V.  Derby,  p.  31 ;  Steamboat  New  World  v.  King,  p.  175. 
Federal  statutes  for  the  security  of  the  lives  of  passengers  on  board  of  vessels 
propelled  in  whole  or  in  part  by  steam,     pp.  222-224. 

STEAMBOATS,    {See  Passengers  by  Water;  Negligencb.) 

proprietors  of,  bound  to  use  every  precaution  which  human  skill,  care,  and 
foresight  can  provide,     p.  205. 

STEERAGE-PASSENGERS, 

entitled  to  what  accommodations  and  treatment,    p.  468. 

STORMS, 

railway  company  must  maintain  a  road-bed  of  sufficient  strength  to  resist 
storms  of  unusual  force,  but  not  storms  of  unprecedented  violence,  pp. 
219,  220. 

STOWAWAY, 

not  entitled  to  the  same  measure  of  care  as  a  passenger,     p.  43. 

STREET-RAILWAY  COMPANIES, 

liability  of,  for  injuries  to  passengers,     pp.  438-447. 

whether  it  is  within  the  scope  of  the  employment  of  a  driver  to  permit  a 
person  to  ride  upon  the  platform  without  paying  fare.  Wilton  v. 
Middlesex  R.  Co.,  p.  438. 

liability  of  the  company  where  such  a  passenger  is  injured  through 
negligence.     Ibid. 
contributory  negligence  of  the  passenger  in  riding  upon  the  front  platform  of 

a  car.     Bums  v.  Bellefontaine  R.  Co.,  p.  441. 
street-railroad  companies  are  carriers  of  passengers,     p.  442. 
ejecting  person  from  street  car  while  in  motion,     p.  443. 
duty  of  conductor  toward  passengers  when  alighting,     p.  443. 


618  INDEX. 


STKEET-RAILWAT  C0MFA1<(IES—  Continued. 

duty  of  passenger  to  notify  conductor  or  driver  of  intention  to  alight,     p. 

443, 
getting  on  street  car  from  the  side  upon  which  there  is  another  track,     p. 

444. 
passenger  injured  while  standing  upon  the  platform  of  a  car.     p.  444. 
passenger  getting  on  and  off  the  car  by  way  of  the  front  platform,     p.  445. 
passenger  injured  by  his  arm  projecting  from  the  window,     p.  446. 
when  the  relation  of  carrier  and  passenger  ceases,     p.  446. 
injury  to  pedestrians  at  street-crossings,     p.  447. 
passenger  on  street  car  not  chargeable  with  negligence  of  the  driver  for  injury 

by  colliding  with  a  railway  train.     Bennett  v.  New  Jersey/  R.  etc.  Co.,  281. 
cases  holding  company  not  liable  for  malicious  conduct  of  driver  in  driving 

against  street  passengers,     p.  371. 

SUNDAY, 

carrier  not  bound  to  carry  on  Sunday,    p.  29. 

THEFT, 

of  baggage  which  is  under  the  personal  control  of  the  passenger,    p.  515. 

THROUGH  TICKETS,     {See  Connecting  Lines.) 

TICKET,    {See  Payment  of  Fake.) 

a  railway  ticket  for  one  part  of  a  route  does  not  entitle  the  holder  to  travel 
over  another  part  of  the  route  for  which  the  same  fare  is  charged.     Qreat 
Western  R.  Co.  v.  Pocock,  p.  63. 
what  a  passage  ticket  is ;  its  legal  effect,     p.  65. 
is  a  token  rather  than  a  contract.     Quimby  v.  Vanderbilt,  p.  423. 
right  of  traveller  to  stop  off  and  resume  journey  on  the  same  ticket,     p.  69. 
tickets  limited  to  a  certain  period  of  time.     p.  70. 

regulations  of  railway  carriers  as  to  the  exhibition  and  delivery  of  tickets,  p. 
836. 

English  statutes  upon  this  subject,     p.  337. 
passengers  riding  without  a  ticket,  or  with  an  improper  ticket,     p.  337. 
if  not  purchased  at  the  station,  a  carrier  may  exact  a  greater  price  for  the 
passage,     p.  341. 

but  must  provide  passengers  with  a  convenient  opportunity  for  the  pur- 
chase of  tickets,     p.  341. 
rule  when  the  office  of  the  carrier  is  closed,     p.  342. 
New  York  statute  upon  the  subject     p.  342. 

TIMB-TABLE, 

liability  of  a  railway  company  for  failing  to  transport  a  passenger  according 
to  its  advertised  time-table.     Denton  v.  Great  Northern  R.  Co.,  p.  5o. 

obligation  of  a  railway  company  to  run  its  trains  according  to  its  advertised 
schedule-time.     p.  67. 

TRAIN-BOY, 

when  deemed  a  passenger,     p.  46. 

TREATMENT   OF   PASSENGERS,     {See  Accommodations.) 

duty  of  carriers  of  passengers  by  water  as  to  the  treatment  of  their  passengers, 
p.  468. 


INDEX.  619 


TRESPASS,     {See  Form  of  Action.) 

TEESPASSERS, 

trespassers  on  carrier's  vehicle  not  entitled  to  the  same  measure  of  care  as 
passengers,     p.  43. 

VARIANCE, 

between  pleading  and  proof  in  actions  against  carriers,     pp.  554-556. 

VEHICLE   AND   ROADWAY, 

liability  of  the  carrier  for  injuries  to  passengers  through  defects  in  his  vehicle 
or  roadway,     pp.  215,  224. 

VERDICTS, 

for  excessive  damages  not  allowed  to  stand,     p.  576. 
illustrations,     pp.  577-686. 

VIGHiANCE   COMMITTEE, 

whether  ship-master  is  bound  to  keep  on  board  a  person  who  has  been  exiled 
by  a  vigilance  committee,  and  who  nevertheless  seeks  to  reluro.  Fearson 
V.  Duane,  p.  17. 

WANT   OP   ROOM, 

want  of  room  in  the  carrier's  vehicle  will  generally  excuse  failure  to  carry, 
p.  29. 

exceptions  to  this.     p.  29. 

Want  op  skill, 

in  the  carrier's  servant,  how  proven,     p.  556. 

WAREHOUSEMAN, 

when  the  responsibility  of  a  carrier  is  that  of  a  warehouseman,    p.  619. 

WARRANTORS,     {See  Insurers.) 

WATER,     {See  Passengers  by  Water.) 

WEALTH   OP   DEFENDANT, 

not  an  element  of  damage,    p.  571. 

WITNESS,     {See  Evidbncb.) 


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